Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn.

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No. 87-1555

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JAMES H. BURNLEY, IV, et al.,

Petitioners,

RAILWAY LABOR EXECUTIVES ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THOMAS COLLEY,

ANN K. FINKBEINER, DENISE R. EVANS,

ANNE B. LACKMAN, HAROLD LACKMAN,

ERNEST H. BARRY, JR., ANNA KAMOLA,

ARTHUR W. JOHNSON, ANNE H. JOHNSON,

ROGER A. HORN, SUSAN HORN, MARY F. CLAY,

HARRY BAUER, AND LORE BAUER

IN SUPPORT OF PETITIONERS

JOHN G. KESTER *

JOHN J. BUCKLEY, JR.

STEPHEN L. URBANCZYK

Of Counsel: Hill Building

WILLIAMS & CONNOLLY Washington, D.C. 20006

Hill Building (202) 331-5000

Washington, D.C. 20006 Attorneys for Amici Curiae

( Attorneys of counsel continued inside cover)

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 27001

Of Counsel (continued):

WILLIAM C. SAMMONS

TYDINGS & ROSENBERG

201 North Charles Street

Baltimore, Maryland 21201

STANLEY J. GLOD

2323 Creek Drive

Alexandria, Virginia 22308

CHARLES I. APPLER

HAMEL & PARK

888 - 16th Street, N.W.

Washington, D.C. 20006

THOMAS L. BRIGHT

MARK, WEIGLE AND PERKINS

115 East King Street

Shippensburg, Pennsylvania 17257

ROBERT W. KATZ

GORDON, FEINBLATT, ROTHMAN,

HOFFBERGER & HOLLANDER

233 East Redwood Street

Baltimore, Maryland 21202

WILLIAM L. POPE

- Post Office Box 944

Columbia, South Carolina 29202

BERTRAM D. FISHER

QUELLER, FISHER, BOWER

& WISOTSKY

110 Wall Street

New York, New York 10005

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................200---cceccececeeseeeeeee iii

INTEREST OF THE AMICI CURIAE .............-..---------- 1

GP ATTIIITIIET ........---<--ccccrecseccsceceecscnessacscsconccecccscesconccosesess 3

SUMMARY OF ARGUMENT. ....................--.s22-------eeeeeeeees 6

EE scisthiscniiantnilemseannpnorenscancnnmincesiate 9

I. DRUG TESTING OF RAILROAD EMPLOY-

EES AND OTHERS ENTRUSTED WITH THE

SAFETY OF THE PUBLIC IS NOT “UNREA-

SONABLE” UNDER THE FOURTH AMEND-

oo bmmeannetnneeisamenpaatoonrene )

A. The Public’s Overwhelming Safety interest

Amply Justifies These Drug Tests ................. i)

B. The Circumstances of a Railroad Accident

Make a Warrant Unnecessary and Imprac-

a eceenicasisensnemeriacotons 16

C. When Employment Entails the Operation of

Dangerous Vehicles That Puts the Public

Safety at Risk, No Particularized Suspicion

SE TE SINS. c socenastsisintnsinnantsiniammmemaceneasone 21

Il. DRUG TESTING BY RAILROADS OF THEIR

OPERATING EMPLOYEES DOES NOT

EVEN IMPLICATE THE FOURTH AMEND-

SEITE cisntpndiiliassissintssinanasnnmnancemecncerscceneepersersneseecnentes 22

A. The Fourth Amendment Has No Application

to Drug Tests Consented to as a Condition

I si lis toanslatieenesenetnmiennseninmmnanccans 22

B. Tests of Breath or Urine Do Not Fall Within

the Scope of the Fourth Amendment .............. 24

C. The Fourth Amendment Does Not Apply to

Drug Tests Required by Privately Owned

Railroad Companies Without Governmental

Compulsion ......... iinet iieledhbainacteelssiidaiibbadulnaniaerbbinninnn 27

COIL IIOIN oasecrsecsncccnenccccnsccscveccssescsescrenenssncscsconsnsoocsengeyrss 30

TABLE OF CONTENTS—Continued

DPPH TIIC TED an eviiccctncnccvencssececesnnesncosessesasn-ccessonasanteonenacssesoss

Excerpt from transcript, State v. Gates, No.

87-CR-2120, Circuit Court, Baltimore County,

Maryland, February 16, 1988 ........................--.--

Excerpt from Report of the National Trans-

portation Safety Board on the Collision at

Chase, Maryland, January 4, 1987 ....................

Excerpt from deposition of Ricky L. Gates,

In re Rail Collision Near Chase, Maryland on

January 4, 1987 Litigation, MDL No. 728,

U.S.D.C., D. Md., March 24, 1988 ....................

25a

Excerpt from transcript, Jn re Special Investi- .

gation, Grand Jury, Baltimore County, Mary-

Be, TI Fi, Te cnecne scence tiresenessnncsensncersnes

Excerpt from Developments in Drug and

Alcohol Testing, Transcript of Hearing Be-

fore the Committee on Commerce, Science and

Transportation, United States Senate, Febru-

ary 25, 1066 ........... Suds academia FA DO

Federal Railroad Administration, Accident In-

vestigation Update, Feb. 23, 1988 ....................

3la

33a

ili

TABLE OF AUTHORITIES

Cases: Page

Anable Vv. Ford, 653 F. Supp. 22 (W.D. Ark. 1985) .. 26

Bell v. Wolfish, 441 U.S. 520 (1979) ...00.0000-.eee.. 9

Blum V. Yaretsky, 457 U.S. 991 (1982)... 28

Brotherhood of Locomotive Engineers Vv. Burling-

ton Northern R.R., 838 F.2d 1087 (9th Cir.

1988), pet’n for cert. pending, No. 87-1631... a2, 27,

29, 30

Brotherhood of Locomotive Engineers Vv. Burling-

ton Northern R.R., 838 F.2d 1102 (9th Cir.

INI ited ctieiserncet aaa ee 22, 29, 30

Brotherhood of Maintenance of Way Employees v.

Burlington Northern R.R., 802 F.2d 1016 (8th

Cir. 1986) ....... piiahidaihnh du trasedeaabadadbedneaccasadiaiieandiincs 29

Burnett v. Municipality of Anchorage, 806 F.2d

a 25

Cady v. Dombrowski, 413 U.S. 433 (1973) .............. 18

California Vv. Greenwood, 108 S. Ct. 1625 (1988) ..8, 15, 24

Capua V. City of Plainfield, 643 F. Supp. 1507 (D.

I ins, oho nice, 0 he ae ah 25

Carroll v. United States, 267 U.S. 132 (1925) 9

Chevron U.S.A., Inc. V. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)... a aw 8, 20

Child Labor Tax Case, 259 U.S. 20 (1922) .......... 16

Colonnade Catering Corp. Vv. United States, 397

2 il aD rer NR ch Fe a 21

Colorado v. Bertine, 107 S. Ct. 738 (1987) .......... 18

Committee for GI Rights v. Callaway, 518 F.2d 166

RE ee Rr A ee 7, 15, 19

Connick Vv. Myers, 461 U.S. 138 (1983)... 23

Cupp V. Murphy, 412 U.S. 291 (1973)... 26

Davis v. United States, 328 U.S. 582 (1946) ..... 22

Department of the Navy v. Egan, 108 S. Ct. 818

gp RRC ACE SEES ET WON ie OA de 23

Division 241 Vv. Suscy, 538 F.2d 1264 (7th Cir.),

cert. denied, 429 U.S. 1029 (1976)... 19

Donovan V. Dewey, 452 U.S. 594 (1981)... 22

Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987)... 25

Greco V. Halliburton Co., 674 F. Supp. 1447 (D.

Wyo. 1987)

TABLE OF AUTHORITIES—Continued

Illinois v. Lafayette, 462 U.S. 640 (1983) _.............. 18

International Brotherhood of Teamsters v. South-

west Airlines Co., 842 F.2d 794 (5th Cir. 1988).. 29

Jackson V. Metropolitan Edison Co., 419 U.S. 345

IBGE SSS ESSN TS RETR Net ated ss eon P a 28

Jones V. McKenzie, 833 F.2d 335 (D.C. Cir. 1987),

pet’n for cert. pending, No. 87-1706 _................... 19, 25

Katz v. United States, 389 U.S. 347 (1967) ............ 9

Kennedy v. Mendoza-Martinez, 372 U.S. 144

RTE SE oly SAS sce EIR ae Oo eee OY ee Oe 16

Lovvorn Vv. City of Chattanooga, 846 F.2d (6th

NIETO IS AOR NS Renee Se Bs ne en 21, 26

McDonell v. Hunter, 809 F.2d 1302 (8th Cir.

ERE SRS SCE Se ROR nc pe oe Ata OC 18, 25

New Jersey V. T.L.O., 469 U.S. 325 (1985) PRET 7,9

New York v. Burger, 107 S. Ct. 2636 (1987)... 21

O’Connor V. Ortega, 107 S. Ct. 1492 (1987)... 7,9

Penny Vv. Kennedy, 846 F.2d 1563 (6th Cir. 1988).. 21

Pickering v. Board of Education, 391 U.S. 563

Ee et = 2 ne ee A, 23

Policemen’s Benevolent Ass’n V. Tow nship of Wash-

ington, F.2d (3d Cir. No. 87-5793,

I ES REO enone: EOL AU Ree eT 18, 19, 20

In re Rail Collision Near Chase, Maryland on Jan-

uary 4, 1987 Litigation, MDL No. 728, U.S.D.C.,

ig BRIE SE A ae AS. ....-2, 10, 25a

Railway Labor Executives’ Ass’n V. Consolidated

Rail Corp., 845 F.2d 1187 (3d Cir. 1988)... 22, 29, 30

Railway Labor Executives Ass’n v. Norfolk &

Western Ry., 833 F.2d 700 (7th Cir. 1987)... 29

Rendell-Baker v. Kohn, 457 U.S. 830 (1982). 28

Rushton Vv. Nebraska Public Power Dist., 844 F.2d

I I cg) 7, 17, 18, 20

Sala v. National Railroad Passenger Corp., No. 88-

1572, U.S.D.C., E.D. Pa. (1988) .......................... 2

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 107 S. Ct. 2971

os adeadiadibceadeesiie eebibinidamasdindacaaecctctdedia tees oe 28

TABLE OF AUTHORITIES—Continued

Page

Schmerber Vv. California, 384 U.S. 757 (1966) ........ 17, 24,

25, 26

Schneckloth v. Bustamonte, 412 U.S. 218 (1978).... 22

Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.),

cert. denied, 479 U.S. 986 (1986).......................... 19

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ~.......2-.. 22

State v. Gates, No. 87-CR-2420 (Cir. Ct., Balt.

ARTE RTS We Ae RE 6, la

United Public Workers v. Mitchell, 330 U.S. 75

a a it 23

United States v. Biswell, 406 U.S. 311 (1972) ~........ 21

United States v. Carolene Products Co., 304 U.S.

RRA ESE a aC CRN SEED os A 23

United States v. Davis, 482 F.2d 893 (9th Cir.

RE Ce en 27

United States v. Gates, No. R-88-116 (D. Mad.

ESTP SRE asst sea aU A ane RN De sn ee 6, 18

United States v. Jacobsen, 466 U.S. 109 (1984)... 15, 24,

United States v. Martinez-Fuerte, 428 U.S. 543

RSET SRE SS > UR oe eee tes oes Be 21

United States v. Mendenhall, 446 U.S. 544 ( 1980). 2°

United States v. Place, 462 U.S. 696 (1983) ............ 24

United States v. Rumely, 345 U.S. 41 (1953)... 16

United States v. Villamonte-Marquez, 462 U.S. 579

FARR ASS ERE ea Do Siecle Serkan FA ae A re 15

Warden Vv. Hayden, 387 U.S. 294 (1967)... 17

Wyman V. James, 400 U.S. 309 (1971) 0 23

Zap Vv. United States, 328 U.S. 624 (1946), va-

cated, 330 U.S. 800 (1947) .................................... 22, 23

Constitutional Provisions:

U.S. Constitution,

EEE SES ne Re evn ae 22, 23

I 7, passim

Regulations and Administrative Documents:

GD TE, BR, Ste GD. aeicsscccccwccdecscccceccccusccceess 10

50 Fed. Reg. 31508 (1985)

TABLE OF AUTHORITIES—Continued

Page

er ns SI sersuundetbosssiines 14

53 Fed. Reg. 16640 (1988)... Jataebetsieiaiéeiaaaiet 6

RI NE EL ee CREM ON etsc 24

EE TE A Ee I EE 24

FF ae Te 16, 20, 29

rai ae i 27-30

Miscellaneous:

Developments in Drug and Alcohol Testing, HEAR-

INGS BEFORE THE COMMITTEE ON COMMERCE,

SCIENCE AND TRANSPORTATION, U.S. SENATE

Co re 15, 17, 33a

Feron, 5 Metro-North Workers in Crash S? »wed

Drug Traces, U.S. Says, N.Y. Times, May 11,

1988, p. Al, col 1... aueieiiteabsiaieaiaidiaimalaaeiaees 13, 14

Halloran, Drug Use in Military Drops; Pervasive

Testing Credited, N.Y. Times, Apr. 23, 1987,

p. Al6, col. 1 ...... RET he GREE NOE “RAE OOO 7

McCord, Tower Operator Won’t Be Tried in Am-

trak Crash, Baltimore Sun, April 14, 1988, p.

SE RSE Rae eect LaPeer ee onaen! AE Renn e LN 13

NATIONAL TRANSPORTATION SAFETY BOARD, RAIL-

ROAD ACCIDENT REPORT: REAR-END COLLISION OF

AMTRAK PASSENGER TRAIN 94, THE COLONIAL,

AND CONSOLIDATED RAIL CORPORATION FREIGHT

TRAIN ENS-121, ON THE NORTHEAST CORRIDOR,

CHASE, MARYLAND, JANUARY 4, 1987 (1988)... 6, 4a

Stevens, 24 Hurt as Amtrak Train Derails; Search

is On for Railroad Worker, N.Y. Times, Jan. 30,

NRE URS San AIEY SO TEL 13

UPI, Prosecution Unsure of Conrail Dispatcher,

SE MII wins aciebcokaciees vas pSidiisas ieladiastheansuiamanaanian ce, 13

Zorzi, Transportation Secretary Urges Airline

Drug Testing, Baltimore Sun, June 3, 1988, p.

10A, col. 1 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1555

JAMES H. BURNLEY, IV, et al.,

Petitioners,

RAILWAY LABOR EXECUTIVES ASSOCIATION, et a/.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THOMAS COLLEY,

ANN K. FINKBEINER, DENISE R. EVANS,

ANNE B. LACKMAN, HAROLD LACKMAN,

ERNEST H. BARRY, JR., ANNA KAMOLA,

ARTHUR W. JOHNSON, ANNE H. JOHNSON,

ROGER A. HORN, SUSAN HORN, MARY F. CLAY,

HARRY BAUER. AND LORE BAUER

IN SUPPORT OF PETITIONERS

This brief amici curiae is filed by Thomas Colley, Ann

K. Finkbeiner, Denise R. Evans, Anne B. Lackman,

Harold Lackman, Ernest H. Barry, Jr., Anna Kamola,

Arthur W. Johnson, Anne H. Johnson, Roger A. Horn,

Susan Horn, Mary F. Clay, Harry Bauer, and Lore

Bauer in support of petitioners.’

INTEREST OF THE AMICI CURIAE

Amici are survivors of some of the sixteen persons

who were killed on January 4, 1987 outside Baltimore,

- Maryland when a Conrail locomotive driven by a

1 Petitioners and respondents have consented to the filing of

this brief: their letters to that effect have been lodged with the

Clerk.

marijuana-smoking engineer and brakeman ran stop sig-

nals and proceeded into the path of an Amtrak passenger

train en route from Washington, D.C. to Boston.2 The

interest of the amici is in assuring that persons under

the influence of drugs and alcohol not be permitted to

operate or control trains, and that laws and regulations

designed to take reasonable steps to prevent such un-

necessary disasters not be struck down by judicial deci-

sions, like the one of the United States Court of Appeals

for tre Ninth Circuit under review here, which fail to

give adequate constitutional weight to the needs of public

safety.

This brief emphasizes facts that document the preva-

lence and the consequences of drug use by railroad

employees, and why it was reasonable for regulatory

officials and railroads to conclude that drug testing is

needed both to identify users and to ensure that such

persons do not continue to have the lives of the public

entrusted to them. Amici are only a handful of the

general public of passengers who ought to be able to

travel on public transportation without risk of such un-

reasonable and avoidable threats to their safety. Amici

hope that in weighing the constitutional reasonableness

of drug testing, this Court will recognize the legitimacy

of efforts like the very minimal ones the court below

nevertheless struck down here—efforts that are designed

to make less likely that the pain and loss that amici

live with as a result of irresponsible drug abuse by rail-

road employees will not be visited on other families

whose members ride on passenger trains.

* Amici have been plaintiffs in consolidated actions a ising out

of that collision pending in the United States District Court for the

District of Maryland. Jn re Rail Collision Near Chase, Maryland on

January 4, 1987 Litigation, MDL No. 728, D. Md. (1987). Counsel

for amici were appointed by the District Court as lead counsel for

the plaintiffs in those consolidated cases. Counsel for amici also

represent persons injured in the 1988 collision near Chester, Penn-

sylvania referred to at pp. 12-13, infra. Sala v. National Railroad

Passenger Corp., No. 88-1672, U.S.D.C., E.D. Pa. (1988).

STATEMENT

Although superficially this case might appear a tech-

nical debate about abstractions of Fourth Amendment

doctrine, it is not that at all. The real-world conse-

quences of this Court’s decision will quite literally affect

issues of life and death. What this case really involves

is not confined to policy directions of railroad corpora-

tions, or entries by governmental bodies ih the Federal

one of the best documented ,instances of drug abuse by

railroad employees and its effects is the collision last

year in which amici lost members of their families. See

J.A. 188-89. The facts that ought to be borne in mind in

deciding this case include these: !

On Sunday afternoon, January 4, 1987, at 12:35 p.m.,

the Amtrak Colonial left Union Station in Washington,

D.C. After an intermediate stop in Baltimore, it was

carrying approximately 650 passengers, many of them

students returning to school and families traveling home

after the holidays.

At 1:16 p.m. a train of three 136-ton Conrail loco-

motives ieft the Bayview Yard in Baltimore heading

north on tracks that converged with the tracks used by

Amtrak passenger trains in the busy Northeast Rail

Corridor.

The Conrail train was driven by engineer Ricky Lynn

Gates. Assisting him in the cab was brakeman Edward

“Butch” Cromwell. Both Gates, the engineer, and Crom-

well, the brakeman, were longtime habitual] abusers of

drugs and alcohol. As they applied power to the lead

locomotive, sometimes exceeding speed limits, Gates and

Cromwell took “hits” on a joint of marijuana, ignored

signals, and watched the scenery. Although their duties

required them to call out the wayside signals along the

route, soon after leaving the yard they ceased to do so.

As the engineer recalled the fatal trip:

Q. ... What did you do when Mr. Cromwell

pulled out the marijuana cigarette at about River?

A. He asked me if I wanted to smoke it then,

and I told him it was his, it was up to him, that I

would prefer if we were going to smoke anything,

to wait until we got on the Port Road branch... .

* * * *

A. The next thing I remember, we were still

talking, I don’t remember the exact nature of the

conversation, we were still in the nature of complain-

ing about the engines and him telling me something

about the trip before then and his brother or some-

thing. And he put what was left of the joint into

a pipe and he started lighting it up.

Q. At that point you had three hits on the joint?

A. I! believe so, yes.

Q. And then he put the remains of the joint

into a pipe; is that correct?

A. Yes.

Q. What did he do with that?

A. He lit it up. He passed it to me at one

point, but it had gone out, and I could—I don’t

recall whether I either tasted it before I tried to

light it, or I just smelled it, but I could smell the

remnants of PCP in the pipe. And I handed it back

to him more or less I was agitated about it, and I

mentioned it to him, and he told me it was his girl-

friend’s pipe and she had probably smoked it.

Q. Does PCP have an odor?

A. Yes, like parsley flakes. That was the only

experience I had ever had with it years before, and

that is what it smelled like, and so that’s what I

assume it was.

Next thing I recall is through the conversation, I

was running assuming we were going to go out or

keep moving at Gunpow Interlocking. and I was

trying to make, save as much time as I could, I

pulled the throttle out a little more is the last thing

I remember.

- 7. 7 *

I know I was talking to Butch, I glanced at him.

. . . I probably glanced at the speed indicator at

some point, the scenery around me and the signal. I

was taking in quite a bit. (Pp. 25a-27a, infra.)

They continued at a speed in excess of 60 miles per

hour, and ignored the wayside directions over nine miles.

Neither Gates nor Cromwell was paying attention as

the train ran through a series of SLOW and then STOP

signals approaching the convergence with the track be-

ing used by the Amtrak passenger train at Chase, Mary-

land, just north of Baltimore.

At 1:30 p.m., Gates at last noticed what was happen-

ing. Cromwell jumped from the train. Gates in panic

hit the emergency brakes, and tried to reverse the loco-

motives. But the Conrail train slid through the STOP

signal and into the path of the Amtrak passenger train,

which was approaching from behind at more than 100

miles per hour. P. 27a, infra. The impact was described

by emergency callers as a “big explosion.” P. 16a, infra.

The National Transportation Safety Board found that

The rear Conrail unit was virtually disintegrated

The forward cab and superstructure of the lead

Amtrak locomotive unit was crushed downward and

inward to the underframe. Separated from the

trucks, the remains of the car body came to rest

west of the tracks about 400 feet north of the

collision point... .

.. . After passing over the food service car, the

second car came to rest on its side atop the rear of

the trailing Amtrak locomotive unit. It was more or

less perpendicular to the track, badly deformed and

bent or crimped downward in the middle at an angle

of about 30°....

P. 5a, infra. The engineer of the Amtrak train and

fifteen of its passengers—most of them children and

young people—were killed Pp. la-3a, infra. At least

174 other passengers were injured. P. 3a, infra, J.A. 188.

The National Transportation Safety Board after in-

vestigation and four days of hearings, in which thirty-

three witnesses were heard, issued a determination

that the probable cause of this accident was the

failure, as a result of impairment from marijuana,

of the engineer of Conrail train ENS-121 to stop

his train in compliance with home signal 1N before

it fouled the No. 2 track at Gunpow... .*

It further recommended that Conrail “{i]mprove the

methods of identifying employees who abuse alcohol and /

or drugs,’ * and that the Federal Railroad Administra-

tion “[e]xpand and intensify its oversight of Amtrak’s

. . compliance with Federal Safety Regulations (includ-

ing the requirements for postaccident toxicological test-

ing. . . .”* The Federal Railroad Administration ob-

served that the collision “illustrates the catastrophic con-

sequences that can occur when railroad employees respon-

sible for passengers or hazardous materials are under

the influence of drugs.” 53 Fed. Reg. 16640, 16641

(1988) .*

SUMMARY OF ARGUMENT

The regulations and policies that the unions challenge

iu this case were designed to help safeguard in a limited

way—indeed, a not fully adequate way *—the public

3 NATIONAL TRANSPORTATION SAFETY BOARD, RAILROAD ACCIDENT

REPORT: REAR-END COLLISION OF AMTRAK PASSENGER TRAIN 94,

THE COLONIAL, AND CONSOLIDATED RAIL CORPORATION FREIGHT TRAIN

ENS-121, ON THE NORTHEAST CORRIDOR, CHASE, MARYLAND, JANUARY

4, 1987 (1988) (hereinafter cited as “NTSB Report”), pp. 23a-24a,

infra.

4 Jd. at 24a.

5 bid.

* Gates pleaded guilty to manslaughter. Staie v. Gates, No. 87-

CR-2420, Circuit Court, Baltimore County, Maryland, February 16,

1988, p. la, infra. Thereafter he also pleaded guilty to obstructing

the National Transportation Safety Board investigation by lying

to investigators. United States v. Gates, No. R-88-116, D. Md. 1988.

7 The Federal Railroad Administration on May 10 of this year

issued a notice of proposed rulemaking that would establish a sys-

tem of random drug tests for railroad employees. 53 Fed. Reg.

16640 (1988). Amici believe that the same overwhelming concerns

of safety that provide constitutional support for the limited testing

at issue here also amply support such random testing. Random

safety. They were adopted in response to well documented

evidence, and findings by responsible governmental agen-

cies, that drug and alcohol abuse by the employees who

operate and direct locomotives and trains on this coun-

try’s railroads constitutes a serious danger to the public.

If not curtailed, drug and alcohol abuse by railroad

employees will continue to cost lives and vast amounts

of damage.*

Even if the Fourth Amendment is applicable to this

testing program—and, for reasons stated at pp. 22-30,

infra, amici submit that it is not—that Amendment in

terms and by this Court’s decisions prohibits only

searches and seizures that are “unreasonable. E.g.,

O’Connor Vv. Ortega, 107 S. Ct. 1492 (1987) ; New Jersey

v. T.L.O., 469 U.S. 325 (1985). The testing challenged

here is not unreasonable. Indeed, given the hazards to the

public and what is new established about drug and alcohol

abuse by railroad employees, e.g., J.A. 187-88, 193-208, any

policy would be unreasonable and inexcusable that did not

require drug testing. The decisions of the expert federal

agency and the operating railroads to require such testing

as one means of making such accidents less likely are am-

testing has been upheld on many occasions for employees on

an the safety of others depends. See, e.g., Rushton V. Nebraska

Public Power Dist., 844 F.2d 562 (8th Cir. 1988) (employees at

nuclear power plant). According to the experience of the military

services, the fact of testing is in itself a significant deterrent to

drug use. See Halloran, Drug Use in Military Drops; Pereassee

Testing Credited, N.Y. Times, Apr. 23, 1987, p. Al6, col. 1; ef.

Committee for GI Rights v. Callaway, 518 F.2d 466, 476 (D.C.

Cir. 1975). See also 53 Fed. Reg. 8368, 8386 (1988) (Federal

Aviation Administration notice of proposed rulemaking to require

post-accident drug testing). The record here supports the same

conclusion. J.A. 189.

8 The monetary cost of the damage the regulations and policies

seek to avoid is also gigantic. Apart from what the National Trans-

portation Safety Board estimated as $16,561,000 damage to vehicles

and railroad property, p. 7a, infra, as a result of the single

collision referred to, Conrail made settlement payments exceeding

$58 million to wrongful-death claimants and $6 million to others ; a

number of additional damage claims are unsettled and pending.

ply supported by vast and unfortunately recurring evi-

dence, and wholly consistent with a practical and urgent

need. The split decision of the Court of Appeals below, that

invalidated both the federally required and the private

sector safety rules on constitutional grounds, really

amounts to an unauthorized judicial second-guessing of

both agency policy and private discretion in a manner

that this Court rejected in Chevron U.S.A., Inc. v. Nat-

ural Resources Defense Council, Inc., 467 U.S. 837

(1984).

The Court of Appeals majority gave dominant weight

to what it called railroad operators’ “legitimate expecta-

tions of privacy in the integrity of their bodies.” Pet.

Cert. 21a. But as this Court explained two months ago,

“An expectation of privacy does not give rise to Fourth

Amendment protection, however, unless society is pre-

pared to accept that expectation as objectively reason-

able.” California v. Greenwood, 108 S. Ct. 1625, 1628

(1988). The absolutist privacy interest asserted by the

unions here is not compatible with the rule of reason

established by the text of the Fourth Amendment, and

is not by any stretch “objectively reasonable.”

Moreover, no one required the members of the respond-

ent unions to accept the well paid and responsible jobs

they hold. They voluntarily made that choice. Persons

in occupations like theirs, who have the safety of the

public thus entrusted to their care, cannot claim the

same interest as others in preventing reasonable testing,

in the employment context, designed to identify irrespon-

sible and dangerous use of drugs and alcohol. And in-

sofar as some of the challenged testing programs are

merely optional, at the option of the private railroads

(who are not even parties to this case), a Fourth Amend-

ment challenge to those privately instituted programs

must fail on familiar doctrine that the Constitution gen-

erally limits only governmental, and not private, action.

The “integrity of their bodies” of railroad employees,

which the majority of the Court of Appeals envisioned

as being so dispositive here, weighs little against the

interest in preserving the integrity of the bodies of pas-

sengers-—and, indeed, fellow railroad workers—who are

at risk of being killed or maimed as a result of drug and

alcohol abuse by railroad employees. Nothing can bring

back the members of amici’s families, who lost their lives

to a train operated by a drug-abusing engineer and

brakeman. This Court’s decision should not block reason-

able efforts either by railroads, or by other passenger and

freight carriers, or by the Government to make it less

likely that such senseless and avoidable bereavements oc-

cur again.

ARGUMENT

I. DRUG TESTING OF RAILROAD EMPLOYEES AND

OTHERS ENTRUSTED WITH THE SAFETY OF

THE PUBLIC IS NOT “UNREASONABLE” UNDER

THE FOURTH AMENDMENT.

The Fourth Amendment is one of the most flexible

provisions of the Constitution. Unlike other clauses

of the Bill of Rights which speak at least textually in

absolute terms, the Fourth Amendment was drafted from

the beginning to make clear that the only searches and

seizures it prohibits are those that, all things consid-

ered, and in the light of actual and present-day necessi-

ties and dangers, are “unreasonable.” The Fourth

Amendment sets forth a rule of reason and practicality.

O’Connor Vv. Ortega, 107 S. Ct. 1492 (1987); New Jersey

v. T.L.0., 469 U.S. 325 (1985). “The Fourth Amend-

ment prohibits only unreasonable searches, Carroll Vv.

United States, 267 U.s. 182, 147 (1925) ....” Bell v.

Wolfish, 441 U.S. 520, 558 (1979). “[T]he Fourth

Amendment cannot be translated into a general constitu-

tional ‘right to privacy.’” Katz v. United States, 389

U.S. 347, 350 (1967).

A. The Publiec’s Overwhelming Safety Interest Amply

Justifies These Drug Tests.

A visitor from a far-away place surely could not help

but be astounded at the Ninth Circuit’s constitutional

holding here. Two judges, constituting a majority of the

Court of Appeals panel, held that the United States Con-

stitution forbids an employer, absent “particularized

suspicion,” to test for drugs employees who are entrusted

with duties hazardous to themselves and others, in an

environment of well-documented frequent use of drugs.

Even after two trains collide, the majority below held,

railroads may not enforce policies, and the Government

may not enforce regulations, designed narrowly to deter-

mine whether the train operators used drugs. The Court

of Appeals held this, moreover, while acknowledging that

“The FRA undertook this rulemaking process in response

0 a perception that drug and alcohol abuse is a serious

problem in the railroad industry posing unacceptable

risks to public and employee safety.” Pet. Cert. at 12a-

13a. The Ninth Circuit’s holding lacks any precedent

and is simply bizarre.

Exactly how reasonable such testing is, and exactly

how disastrous drug use by railroad employees can be,

is vividly demonstrated in the record of the train colli-

sion outside Baltimore last year in which amici’s children

or relatives were killed. As the drug-using engineer, who

survived the crash with minor injury, later testified:

Q. How frequently were you using marijuana at

this point in time?

A. Maybe once or twice a week.

+ o * .

Q. For what period of time had you been using

marijuana at this rate?

A. Since about the age of 18.

® The i ederal Railroad Administrator in 1983 found that “Al-

cohol impairment and drug impairment have been identified as

causal or contributing factors in a number of train accidents and

employee fatalities over the past ten years.” 48 Fed. Reg. 30723

(1983); see also 50 Fed. Reg. 31508 (1985).

1” The quoted testimony is from his deposition in consolidated

civil actions arising out of the collision. Jn re Rail Collision Near

Chase, Maryland on January 4, 1987 Litigation, MDL No. 728,

U.S.D.C., D. Md.

Again, I might add I am subject to blackouts

under the influence of drugs and alcohol. (Pp. 28a-

30a, infra. )

Such drug and alcohol abuse, both on and off the job,

by these railroad employees and by railroad operators

generally was nothing new or unique. The engineer

testified :

Q. Did you ever use marijuana or any other

illegal ~~ with any of your Conrail co-workers?

The answer is yes?

Yes.

On how many occasions?

I don’t know.

* * a *

How frequently did you use marijuana with

your Conrail co-workers in 1986?

A. I can’t recall any—I don’t know how to

answer it as far as frequency goes, but it was a

number of times.

Q. More than ten?

A. Probably.

Q. More than 20?

A. Maybe. (Pp. 29a-30a, infra. |

The brakeman testified that this was not the first time

that he and the engineer had operated a locomotive while

smoking marijuana. Pp. 3la-32a, infra.''

roperd

'! The engineer also admitted constant abuse of alcohol:

Q. What quantities were you normally drinking alcohol?

A. Anywheres from a minimum of a six-pack a day to a case

and a half, two cases a day.

Q. A six-pack to a case or two cases a day: is that correct?

A. Sometimes, yes.

Q. And what was your average consumption? Was it closer

to one case?

A. Average consumption was close to a case, yes.

MR. SARSFIELD: What was the answer to that? Average

consumption was what?

{ Continued }

Nor was this crash, which devastated sixteen families

and caused pain and hardship for many others, an 1s0-

lated event. The list since that time has grown steadily

longer, and new drug-related railroad crashes have oc-

curred even since amici filed their earlier brief in this

Court three months ago. See generally J.A. 196-203. An

incomplete sampling of some of the more publicized events

includes these: .

On November 8, 1987, two Union Pacific freizht

trains collided head-on near Kemmerer, Wyoming after

one of them ran a stop signal. A conductor was killed

and six crew members injured. The front brakeman on

the train that ran the signal tested positively for cocaine

in his blood and urine. See J.A. 203.

—On January 29, 1988, near Chester, Pennsylvania,

an Amtrak passenger train plowed into a railroad main-

tenance-of-way vehicle on the tracks ahead of it. At

least nineteen persons were injured. The operator of the

switch which should have stopped the train hid from au-

thorities for three days; when he gave himself up and

was tested, his urine still showed positive for use of four

different drugs: marijuana, cocaine, methamphetamine,

and amphetamine. See pp. 36a-38a, infra. The local dis-

11 [Continued |

A. Probably close to a case of beer a day.

Q. It was that pretty much every day?

A. Almost every day, yes. 3

Q. And by a case of beer, of course, we are referring to 24,

12-ounce cans of beer; is that correct?

A. Yes.

Q. For what period of time had you been consuming alcohol

at that rate of almost a case a day, or over a case a day?

A. I would say for close to a year ‘at that time. .

Q. And during what times of day would you do your drink-

ing?

A. Any time. a

Q. What time of day would you start drinking?

A. Any time.

P. 28a, infra. The engineer testified to having once been sent to

drive a locomotive when he said he was too drunk to drive an auto-

mobile. Pp. 33a-34a, infra.

trict attorney announced that because of the delay before

the tests could be administered, it was impossible to prove

the timing of the usage in relation to the collison, and

so no criminal charges would be filed.’

—On April 6, 1988, a commuter train ran a stop sig-

nal and plowed into the back of another commuter train

in Mount Vernon, New York. The body of the engineer,

who was killed in the crash, showed traces of marijuana.

In addition, three tower operators and the dispatcher in

New York City showed traces of drugs when’ tested:

amphetamines in the cases of two of the tower operators,

marijuana for the third, and morphine and codeine for

the dispatcher."*

—On May 21, 1988, two Conrail trains collided head-on

in Fair Lawn, New Jersey. A brakeman on one of them

was killed. A dispatcher had put both trains on the same

track. He was tested for drugs and found positive for

use of marijuana."

—A week prior to that collision, the Federal Railroad

Administrator had stated that since the crash in which

amici’s children or relatives were killed,

the nation’s railroads experienced 37 accidents where

one or more employees tested positive for drugs and

four in which one or more employees tested positive

for alcohol.

Over the last 16 months, Mr. Riley said, “we’ve

averaged one major rail accident every 10 days in

which alcohol or drug abuse was discovered, with

more than 375 people killed or injured in those acci-

dents.

12 See McCord, Tower Operator Won't Be Tried in Amtrak Crash,

Baltimore Sun, April 14, 1988, p. 81, col. 2; Stevens, 24 Hurt as

Amtrak Train Derails; Search is On for Railroad Worker, N.Y.

Times, Jan. 30, 1988, p. 1, col. 3.

'S Feron, 5 Metro-North Workers in Crash Showed Drug Traces,

U.S. Says, N.Y. Times, May 11, 1988, p. Al, col. 1 (emphasis

supplied).

'™ UPI dispatch, Prosecutor Unsure on Conrail Dispatcher, June

17, 1988.

“We have found\drug-positive results in one of

every five railroad aceidents we've tested in the last

two years, and 65 percent of our fatalities occurred

in accidents where one or more employees tested

positive for alcohol or drugs ™

The Federal Railway Administration earlier this year

reported :

During the thirteen-month period January 1987

through January 1988, the nation’s railroads experi-

enced 41 accidents (including Chase, Maryland) in

which one or more employees tested positive for

alcohol or illegal drugs. Alcohol or drug use by one

or more employees was detected in over 20% of

qualifying events for post-accident testing. FRA be-

lieves that there are significant indications that alco-

hol or drug use played a causal or contributory role

in 13 of these events, accounting for 19 fatalities,

22) injuries and $19,956,000 in property damage.

Of the 13 events, illicit drug use was present in 10

and aleohol use in only 3, despite estimates at the

time the current rule was issued that aleohol preva-

lence and drug use prevalence were roughly equal.

The 10 accidents involving drug positives accounted

for 18 fatalities, 220 injuries, and $18,725,628 in

property damage.

53 Fed. Reg. 16640, 16641 (1988). See also J.A. 187-88,

193-203.

It is impossible, given the documented risk, to under-

stand how any asserted privacy interest that the rail-

road unions claim in the contents of samples of their

members’ urine or breath—or even medical samples of

their blood-—could begin to compare with the obvious and

overriding interest of the traveling public in having some

assurance that common carrier vehicles are not being op-

erated by unspeakably irresponsible persons who find it “en-

joyable” while on duty to light up marijuana while “olanc-

[ing] at the speed indicator land] ... the scenery” and

“pull{ing| out the throttle.” Pp. 26a-27a, infra."

15 Feron, supra n.13 (emphasis supplied ).

16 Even the Air Line Pilots Association, although opposing drug

testing of pilots generally, at least supports post-accident testing,

The Court of Appeals majority, unimpressed by such

dangers, said it gave great weight to train operators’

“legitimate expectations of privacy in the integrity of

their bodies.” Pet. Cert. 2la. But that is a conclusion,

not a rationale. “An expectation of privacy does not give

rise to Fourth Amendment protection, however, unless

society is prepared to accept that expectation as objec-

tively reasonable.” California v. Greenwood, 108 S. Ct.

1625, 1628 (1988). “The concept of an interest in pri-

vacy that society is prepared to recognize as reasonable

is, by its very nature, critically different from the mere

expectation, however well justified, that certain facts

will not come to the attention of the authorities.” United

States v. Jacobsen, 466 U.S. 109, 122 (1984) (footnote

omitted). In the context of hazards of this magnitude,

and in the employment setting, there was no legitimate

expectation of privacy here sufficient to overcome such a

limited and necessary testing.'’ The dissent below pointed

pre-employment testing, and testing to monitor rehabilitation. See

Zorzi, Transportation Secretary Urges Airline Drug Testing, Balti-

more Sun, June 3, 1988, p. 10A, col. 1. The railroad unions’ adamant

claims of a constitutional privilege on behalf of their members is

all the more shocking in light of the significant number ef drug-

caused fatalities to railroad workers themselves. One of the present

amici is the widow of the engineer of the Amtrak train inte whose

path the Conrail train was driven. See p. la, infra.

Moreover, the unions’ position is far from consistent. On Feb-

ruary 25, 1988, counsel of record for respondents testified on their

behalf before the Committee on Commerce, Science and Transpor-

tation of the United States Senate. He stated in that testimony:

SENATOR DANFORTH: Mr. Mann, you do not object to

drug testing except random testing, is that right?

MR. MANN: That is correct.

P. 35a, infra.

17 Cf. United States Vv. Villamonte-Marquez, 462 U.S. 579 (1983)

(governmental interest in assuring compliance with documentation

requirements permits limited intrusion of boarding vessels) ; Com-

mittee for GI Rights v. Callaway, 518 F.2d 466, 476 (D.C. Cir.

1975) (holding Fourth Amendment does not bar urinalysis testing

for drugs of members of the armed forces, noting that “[w ]ide-

spread use of marijuana, hashish and other drugs c :n have a serious

out the obvious: “the incalculable risk to public safety

posed by alcohol or drug impaired train crews.” Pet.

Cert. at 37a. The suffering of amici is unfortunately

only one of the recent fatal instances, demonstrating that

without effective control of railroad employees’ drug use,

the risk becomes for some number of passengers and

fellow workers a statistical certainty.

The majority in the Court of Appeals, unfortunately,

ignored the heart of the Fourth Amendment-——that it is

a rule of reason—and engaged in an abstract and other-

worldly analysis reminiscent of the most refined medieval

doctrinal disputes, as if all that were at stake here were

the admission of some disputed evidence at a criminal

trial. The practical leaders of the Eighteenth Century

who wrote and adopted the Fourth Amendment simply

could not have intended to erect such a constitutional bar-

rier to such a minimal administrative step to help ensure

the public safety. In this context as in others, “while the

Constitution protects against invasions of individual

rights, it is not a suicide pact.” Haig v. Agee, 453 U.S.

280, 309-10 (1981), quoting Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 160 (1963). To disallow on con-

stitutional grounds the testing for drug use of operators

of hazardous equipment, “we would have to be that ‘blind’

Court, against which Mr. Chief Justice Taft admonished

in a famous passage, Child Labor Tax Case, 259 U.S. 20,

37 {1922], that does not see what ‘[a]ll others can see

and understand’... .” United States v. Rumely, 345

U.S. 41, 44 (1953).

B. The Circumstances of a Railroad Accident Make

a Warrant Unnecessary and Impracticable.

Subpart C of the regulation, 49 C.F.R. § 219.201 et

seq.—the portion which is mandatory and imposed by

governmental action—requires prompt urine and_ blood

testing of railroad employees who are involved in serious

debilitating effect on the ability of the Armed Services to perform

their mission”).

accidents. Surely the existence of such an event—like the

collision in which amici’s children or other relatives were

killed~-would be obviously sufficient in itself to supply

“probable cause” for the issuance of a warrant to make

a reasonable search. Cf., ¢.g., Schmerber v. California,

384 U.S. 757 (1966) (automobile accident provided prob-

able cause for blood test). Issuing a warrant in such

circumstances, if there were time to get one and serve

it, would be virtually a ministerial act. But there is

likely to be no time in the confusion after an accident

promptly to obtain a warrant.

Drug metabolites or alcohol in blood, breath or urine

diminish rapidly in quality as time passes, and the abil-

ity to tie them directly to impairment recedes. A trig-

gering event thus may supply the exigent basis for a

warrantless search. Schmerber v. Cali: s-nia, supra, 384

U.S. at 769-70 (imminent destruction of evidence) ; War-

den V. Hayden, 387 U.S. 294, 298-300 (1967) (pursuit of

fleeing suspect). The Court of Appeals itself appeared to

recognize this. Pet. Cert. 16a. See also J.A. 190-91.

Nor can it be expected that railroad employees who in

fact have used such substances will cooperate and make

themselves available over an extended period of time.

They have every incentive to cover up their wrongdoing.

As one court of appeals recently commented, “|t| here was

expert testimony at trial that a drug abuser would do

just about anything to avoid detection.” Rushton v. Ne-

braska Public Power Dist., 844 F.2d 562, 566 (8th Cir.

1988). After the collision in which amici’s relatives were

killed, the engineer testified that “I have never known

anyone to turn themselves in.” P. 35a, infra. The dis-

patcher in one crash fled and hid for three days to avoid

drug testing. It was later also admitted that the brake-

man in the Chase, Maryland crash, even though encum-

bered by a broken leg, managed to flee the scene of the

accident and hide the pipe in which he had been smoking

marijuana in some brush along the track; it was never

found. The engineer delayed testing by refusing an offer

of a ride to the hospital. Neither he nor the brakeman

revealed their drug use to authorities ‘» the hours after

the accident. In fact, they met and agreed to lie and

deny that they had used drugs."* Without post-accident

tests, their use never would have been detected. It was

only after testing their blood and urine that the drug use

in the case began to come out. See also J.A. 188-89.

Given the time constraints and the ephemeral nature

of the essential evidence required, there simply are no

adequate less intrusive alternatives to these testing

measures. Some alternatives—such as following employ-

ees around and spying on them—would be less workable

and far more intrusive. The reasonbleness of testing after

a major accident is obvious. And even if there were prac-

tical alternatives, that would not in itself render the

decision by the FRA or the railroads to choose the policy

they did “unreasonable” under the Fourth Amendment.

“The reasonableness of any particular governmental ac-

tivity does not necessarily or invariably turn on the exist-

ence of alternative ‘less intrusive’ means.” Colorado v. Ber-

tine, 107 S.Ct. 738, 742 (1987), quoting Illinois v. Lafay-

ette, 462 U.S. 640, 647 (1983). “The fact that the protec-

tion of the public might, in the abstract, have been

accomplished by ‘less intrusive’ means does not, by itself,

render the search unreasonable.” Cady v. Dombrowski,

413 U.S. 433, 447 (1973).

The ruling of the Court of Appeals majority here con-

flicts with the decisions of many other courts that have up-!

held drug testing of workers in jobs affecting the public

safety, against Fourth Amendment challenges. See Police-

man’s Benevolent Ass’n V. Township of Washington,

F.2d (3d Cir. No. 87-5793, 1988) (police officers) ;

Rushton v. Nebraska Public Power Dist., 844 F.2d 562

(8th Cir. 1988) ‘(employees in state nuclear power

plant); McDonell v. Hunter, 809 F.2d 1302 (8th Cir.

18 The engineer later lied about it to investigators of the National

Transportation Safety Board, for which he subsequently was in-

dicted and pleaded guilty to obstruction of a federal investigation.

United States vy. Gates, No. R-88-116 (D. Md. 1988).

1987) ‘prison guards); Committee for GI Rights v.

Callaway, 518 F.2d 466 (D.C. Cir. 1975) (members of

the armed forees!. It has been held that there is no

constitutional bar to testing operators of buses that run

within a metropolitan area, Division 241 v. Suscy, 538

F.2d 1264 (7th Cir.), cert. denied, 429 U.S. 1029

(1976); the need to test operators of interurban trains

is surely no less. The D.C. Cireuit has acknowledged that

because of “serious safety concerns” appropriate routine

drug tests may be required not just of drivers, but of

school bus attendants as well. Jones v. McKenzie, 833

F.2d 335, 340 (D.C. Cir. 1987) (empnasis in original),

pet’n for cert. pending, No. 87-1706. And if there is

no constitutional prohibition to testing of racetrack jock-

eys—where the interest asserted to justify the tests is

merely that of horse race bettors and spectators in “pre-

serving both the fact and the appearance of integrity of

the racing performances’’—then surely the interest of

tne publie in transportation safety is sufficient to prevail

here. See Shoemaker v. Handel, 795 F.2d 1136, 1138

(3d Cir.), cert. denied, 479 U.S. 986 (1986).

The Ninth Circuit, acknowledging that “our decision

may be seen as conflicting with decisions of other cir-

cuits,” Pet. Cert. 30a, nevertheless announced a different

constitutional conclusion of its own. It decided that

We think when testing is undertaken to detect

drug or alcohol abuse as a means of improving the

safe operation of a railroad, it poses no insuperable

burden on the government to require individualized

suspicion. . . . [Wle believe it [a requirement of

individual suspicion] should be incorporated into

19 Cf. Policeman's Benevolent Ass'n V. Township of Washington,

—. F.2d ——~ (3d Cir. No. 87-5793, 1988) (upholding drug testing

of police officers): “The need in a democratic society for public con-

fidence, respect and approbation of the public officials on whom the

state confers that awesome [law enforcement] power is significantly

greater than the state’s need to instill confidence in the integrity of

the horse racing industry.” Slip op. at 20.

the mandatory testing provisions set out in 49 C.F.R.

§$219.201....

Pet. Cert. 26a-27a (emphasis added).

The constitutional, not to mention the factual, author-

ity for the “We think,” the “we believe,” and the “should

be” in the court’s edict is impossible to discern. For a

court thurs to reweigh the policy pros and cons, and

thereby reach such a policy conclusion that rejects the

determination of both the expert federal agencies set up

by Congress, and the private enterprises that operate

the railroads, is really an unauthorized kind of judicial

review of agency weighing of competing interests. It

stands in sharp contrast with, for example, this Court’s

holding in Chevron U.S.A., Ine. V. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), that “[t]he

responsibilities for assessing the wisdom of such policy

choices and resolving the struggle between competing

views of the public interest are not judicial ones. . . .”

467 U.S. at 866. The courts of course are the ultimate

arbiters of the meaning of the Constitution; but the

Fourth Amendment clearly recognizes the need for intru-

sions on privacy in circumstances too variable to try to

list, and contemplates that, here particularly, govern-

mental decisions are to be given reasonable leeway. The

Fourth Amendment was not a charter to the Ninth Cir-

cuit to second-guess how the railroads should be run.

On this record the Ninth Circuit’s decision to reject the

regulation was not only amazingly unwise policy; it was

wholly beyond the court’s proper function.

Of three circuits ruling on drug testing subsequent to

the decision under review here, two explicitly disagreed

with it. Policeman’s Benevolent Ass’n v. Township of

Washington, F.2d (8d Cir. No. 87-5793,

1988): Rushton v. Nebraska Public Power Dist., 844

F.2d 562. 567 (8th Cir. 1988). In the other, a 2-1 deci-

sion of the Sixth Circuit involving firefighters, one of the

two judges of the majority announced that

I do not consider the “potential,” “significant,” or

“irretrievable harm” that might be visited upon so-

ciety by drug-using public employees to be proper

justification for a search.

Lovvorn v. City of Chattanooga, 846 F.2d 1539, 1551

(6th Cir. 1988) (Johnstone, J., concurring). That

statement makes explicit what is perhaps implicit in the

decision of the Ninth Circuit under review here. Amici

respectfully submit that, particularly in the context of

reasonableness established as the test by the Fourth

Amendment, that statement is shocking and wrong.

C. When Employment Entails the Operation of Dan-

gerous Vehicles That Put the Public Safety at Risk,

No Particularized Suspicion Need Be Shown.

Although “some quantum of individualized suspicion is

usually a prerequisite .... the Fourth Amendment im-

poses no irreducible requirement of such suspicion.”

United States v. Martinez-Fuerte, 428 U.S. 543, 560-61

(1976). New York v. Burger, 107 S. Ct. 2636 (1987),

upholding warrantless searches of automobile junkyards,

is simply the latest in a long series of decisions in which

this Court has recognized the validity under the Fourth

Amendment of searches that are obviously related to the

regulation or operation of an ongoing enterprise. See

also, e.g., United States v. Biswell, 406 U.S. 311 (1972)

(pawn shop) ; Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970) (caterer).

Moreover, this case does not involve intrusions on in-

dividuals’ homes; it has to do with their job performance.

The Fourth Amendment’s limitations are always less

stringent in the business and commercial context. See,

““9 Even the Sixth Circuit recognized in a companion case that

“attention must be focused on the nature of the work force,” and

“ltlhe higher the costs and more irretrievable the losses, the

stronger the argument for finding reasonable the initiation of a

drug testing program,” particularly in “employment sectors where

employees literally hold thousands of lives in their hands everyday.”

Penny Vv. Kennedy, 846 F.2d 1563, 1566 (6th Cir. 1988).

e.q., Donovan Vv. Dewey, 452 U.S. 594, 598-600 (1981) ;

Davis v. United States, 328 U.S. 582, 593 (1946). Ac-

tivities in commerce are at issue here. The present litiga-

tion is brought by labor unions. It asserts a constitu-

tional challenge to the nature of one aspect of working

conditions, even though elsewhere, in other litigation,

unions are challenging the railroad drug testing program

simply as a violation of labor laws and collective bargain-

ing agreements.”

Il. DRUG TESTING BY RAILROADS OF THEIR OPER-

ATING EMPLOYEES DOES NOT EVEN IMPLI-

CATE THE FOURTH AMENDMENT.

The Fourth Amendment does not apply to the tests

challenged here at all.

A. The Fourth Amendment Has No Application to

Drug Tests Consented to as a Condition of Em-

ployment.

Consent to a search of course waives any Fourth

Amendment objection. ‘“{A] search authorized by con-

sent is wholly valid.” Schneckloth v. Bustamonte, 412

U.S. 218, 222 (1973); see also United States v. Menden-

hall, 446 U.S. 544 (1980); Davis Vv. United States, 328

U.S. 582 (1946); Zap v. United States, 328 U.S. 624

(1946), vacated on other grounds, 330 U.S. 800 (1947).

In many contexts it has long been established that the

conferral of benefits, such as responsible employment,

may be reasonably conditioned upon the recipient’s limit-

ing some rights that a member of the general public

would enjoy undiminished. Such conditioning has been

21 See Railway Labor Executives’ Ass'n V. Consolidated Rail

Corp., 845 F.2d 1187 (3d Cir. 1988); Brotherhood of Locomotive

Engineers v. Burlington Northern R.R., 888 F.2d 1102 (9th Cir.

1988) ; Brotherhood of Locomotive Engineers V. Burlington Northern

R.R., 838 F.2d 1087 (9th Cir. 1988), pet'n for cert. pending, No.

87-1631.

22 Cf. Schlagenhauf v. Holder, 379 U.S. 104, 113 (1964); Sibbach

Vv. Wilson & Co., 312 U.S. 1 (1941) (party in civil action may be

required to undergo physical or mental examination as a condition

of suing).

a ee

upheld even when the general rights modified involved

core First Amendment values of political expression. See,

e.g., Connick v. Myers, 461 U.S. 138 (1983); United

Public Workers Vv. Mitchell, 330 U.S. 75 (1947). Back-

ground investigations, for example, are far more intru-

sive, but because the country’s safety is at stake are

routinely required of both government and private em-

ployees as a condition of access to military secrets. See

Department of the Navy v. Egan, 108 S.Ct. 818, 824

(1988).

Where the purpose of a search is directly and inex-

tricably bound up with the ability to perform the duties

undertaken, then consent can be recognized. Even in the

context of First Amendment expression, where the con-

stitutional test is far stricter, of. United States v. Caro-

lene Products Co., 304 U.S. 144, 152 n. 4 (1938), “[t]he

problem ‘1 any case is to arrive at a balance... .”

Pickering v. Board of Education, 391 U.S. 563, 568

(1968) ; cf. Department of the Navy Vv. Egan, supra.

Even more readily than in the First Amendment con-

text, this Court has recognized the applicability of this

common-sense rule to the more flexible provisions of the

Fourth Amendment. In Wyman v. James, 400 U.S. 309

(1971), it held that the Fourth Amendment did not apply

to home visits by welfare officials where refusal to con-

sent would lead to denial of benefits; and in Zap V.

United States, 328 U.S. 624 (1946), vacated on other

grounds, 330 U.S. 800 (1947), a defense contractor was

held barred to raise the Fourth Amendment when it had

opened its books and records as a condition to obtaining

government contracts.

Even if one assumed that the constitutional restraints

applicable to terms of government employment could be

translated to the situation of privately employed railroad

operators, it certainly is not an unreasonable condition

for employment—as an operator of lethal devices—to

require submission to tests to detect use of substances

that impair the very same physical and mental qualities

necessary to operate such equipment with safety. It is

no more objectionable or unreasonable than to condition

the grant of licenses to airplane pilots on periodic tests

to ensure that they are not losing their vision. See 14

C.F.R. §§ 61.23, 67.13-19.

B. Tests of Breath or Urine Do Not Fall Within the

Scope of the Fourth Amendment.

This Court has never ruled that an examination of

exhaled breath or excreted urine, waste products of the

respiratory and metabolic processes, falls within the

Fourth Amendment. The general rule is that searches

of abandoned waste material do not. California v. Green-

wood, 108 S. Ct. 1625 (1988). Breath and urine tests,

unlike blood tests, do not involve “intrusions into the

human body.” See Schmerber v. California, 384 U.S. 757,

767 (1966). Nor does either require the subject to ex-

pose private parts in public. The assertion by the Court

of Appeals here, citing district court cases, that “uri-

nalyses and body cavity searches ,are| equally degrad-

ing,” Pet. Cert. 23a, is simply absurd, reflecting, no

doubt, little experience with either. And surely no one

can seriously suggest that a warrant and probable cause

are required to smell someone’s breath.

That breath analysis and, by extension, urinalysis are

not searches within the Fourth Amendment is clear from

this Court’s reasoning in United States v. Place, 462

U.S. 696 (1983), which so held with respect to “sniff

tests” of luggage by dogs. Citing and quoting Place with

approval, this Court in United States yv. Jacobsen, 466

U.S. 109, 123 (1984), added that chemical tests to deter-

mine whether a substance contains drugs do “not com-

promise any legitimate interest in privacy.”

The Court of Appeals in order to justify reference to

the Fourth Amendment simply c’ted a series of lower

court opinions—for the most part dicta—that ignored

United States v. Place and extrapolated from this Court’s

decision in Schmerber, supra, which held that inserting

a needle into the body and drawing blood was—obviously

—a kind of search. All those cases pretended that this

Court in Schmerber had already decided the question.

The Eleventh Circuit, for example, assumed a urinalysis

to be a search because “{t]his is consistent with rulings

like that of the Supreme Court [in Schmerber] that the

taking of a blood sample is a search.” Everett V. Napper,

833 F.2d 1507, 1511 (11th Cir. 1987). Forgetting the

far different physical nature of the process by which a

blood sazaple is obtained, and the differences between

blood and waste products, the dicta on which the court

below relied really seem to say that urine samples like

blood samples are both analyzed in laboratories, and so

therefore the Fourth Amendment must apply to each.

Cf., e.g., Jones V. McKenzie, 833 F.2d 335 (D.C. Cir.

1987), pet’n for cert. pending, No. 87-1706; McDonell

v. Hunter, 809 F.2d 1302, 1307 (8th Cir. 1987). Al-

though the court below similarly asserted that Schmer-

her somehow settled the matter, this Court, of course,

has never held any such thing.

Likewise, some lower courts that have taken the fur-

ther leap of assuming breath tests to be “searches”

implicating the Fourth Amendment have done so almost

exclusively by again making inappropriate analogy to

Schmerber v. California, supra. Yet breath is not some-

thing wholly internal to the body. It is something ex-

peiled and made public nearly twenty times every minute.

Using such loose reasoning, the Ninth Cireuit’s own pre-

vious decision, relied on below, in Burnett v. Municipality

of Anchorage, 806 F.2d 1447 (9th Cir. 1986), cited only

to Schmerber in finding that a breath test constitutes a

searvh, id. at 1449, even though acknowledging that “the

breath test . . . is clearly a less objectionable intrusion

23 Jones V. McKenzie indeed recognized that “urine, unlike blood,

is routinely discharged from the body so that no actual (physical)

intrusion is required for its collection . . ”" and “[{ul)rinalysis

properly administered is not as intrusive as a strip search or a

blood tust.”” 809 F.2d at 1307-08 (quoting Capua v. City of Plainfield,

643 F. Supp. 1507, 1513 (D.N.J. 1986)).

than the compulsory blood samples allowed under Schmer-

ber.” Id. at 1450.**

The point has been made exceedingly well by the dis-

senting judge in the Lovvorn case, previously cited:

Although the majority of drug testing cases have

stated or assumed that a search is involved, I sug-

gest that that is not necessarily the case. If an

employer without consent were to remove urine with

a catheter from the bodies of employees, just as the

blood sample was removed by a needle in Schmerber,

I would agree that this is a search. However, if the

employee is asked to donate a urine sample and sur-

render it to the employer for analysis, is that a

search? I would conclude it is not for the simplest of

reasons. It does not comport with any commonly ac-

cepted definition of the word “search.” 846 F.2d at

1552 (Guy, J., dissenting) (emphasis in original;

footnote omitted) .**

What the existing accumulation of lower-court urinaly-

sis and breathanalysis cases really represents is not a

body of careful judicial logic, but rather an accretion of

loose and careless analogies, all claiming to be based on

each other and on this Court’s having settled a matter

that it never has decided at all. Such fragile but prolific

pronouncements if not corrected could seem to point to-

ward conceivable future holdings that almost any ex-

ternally observed physical information about a person—

a voiceprint, a fingerprint, a piece of hair, perhaps even

a photograph or videotape *—might be a search sub-

ject to full Fourth Amendment prerequisites.

24 The district court in Anable v. Ford, 653 F. Supp. 22 (W.D.

Ark. 1985), for another example, conceded that it was “unaware

of any ‘breathalyzer’ cases on point” but nevertheless ruled that

breath analyses were “searches” comparable to searches of “body

cavities, bloodstreams or subcutaneous tissues ....” Jd. at 35.

25“ Many of these decisions . . . merely parrot the conclusion

that drug testing constitutes a search within the meaning of the

fourth amendment.” /d. at 1562 (dissenting opinion).

26 But cf. Cupp. v. Murphy, 412 U.S. 291, 296 (1973), permitting

police without warrant “to preserve the highly evanescent evidence

they found under his fingernails.”

C. The Fourth Amendment Does Not Apply to Drug

Tests Required by Privately Owned Railroad Com-

panies Without Governmental Compulsion.

Subpart D of the regulations, 49 C.F.R. §§ 219.301-

309, merely authorizes breath or urine tests in specified

circumstances. It does not require them. Whether they

are required depends on the decision of the railroad com-

pany. In fact, the very same panel of the Ninth Circuit

in a case decided the day after the one under review

here, challenging railroad drug testing under a collective

bargaining agreement, acknowledged:

BN [the Burlington Northern Railroad Company]

is not a government agency and, therefore, is not

subject to the restrictions of the fourth amendment.

Brotherhood of Locomotive Engineers v. Burlington

Northern R.R., 838 F.2d 1087, 1092 (9th Cir. 1988),

pet’n for cert. pending, No. 87-1631.

The Court of Appeals also recognized that the Fourth

Amendment does not limit any actions except those that

can legitimately be attributed to the federal govern-

ment. See, e.g., United States v. Jacobsen, 466 U.S. 109

(1984). To surmount that hurdle, the Court of Appeals

relied simply on a dictum in one of its own decisions

from 1973," and on references to statutes that authorize

the Secretary of Transportation and the Federal Rail-

road Administrator to require, e.g., accident reports and

safety testing of railroad equipment. Pet. Cert. 10a-13a.

Finally, it concluded that the railroads’ requiring drug

testing under Subpart D should be treated as if the

federal government had required it, because

The general concern with drug and alcohol abuse

and the national goa! of eradicating that abuse is a

matter of common knowledge.

Id. at 13a. Public concern, the Court of Appeals thus

concluded, equates to governmental action. Under the

Court of Appeals’ loose and impatient reasoning, appar-

ently a policy adopted by a private company that is con-

27 United States v. Davis, 482 F.2d 893 (9th Cir. 1973) (upholding

airport searches of airline passengers).

sistent with a laudable and important objective that re-

ceives national attention, thereby becomes subject to

the strictures of the Constitution as if the federal gov-

ernment itself had done it.

This Court has always rejected such an open-ended and

unprincipled extension of “state action” concepts, and

should do so again now. In fact, in recent decisions this

Court has repeatedly rejected such notions and reiterated

that even extensive government regulation, Congressional

delineation of duties, even government-conferred monop-

oly status, do not turn an enterprise into the state for

purposes of the Constitution. See, e.g., San Francisco

Arts & Athletics, Inc. Vv. United States Olympic Commit-

tee, 107 S. Ct. 2971 (1987); Jackson Vv. Metropolitan

Edison Co., 419 U.S. 345 (1974). Nor do regulations

that encourage private adoption of particular policies.

Blum v. Yaretsky, 457 U.S. 991 (1982). Railroads are

regulated, but so are other transportation companies,

from airlines to buses and barges, and not excluding

automobile manufacturers. That regulation does not turn

their policies to assure worker competency and alertness

into government action, even when the government au-

thorizes (without requiring) such policies or encourages

their adoption. “Even extensive regulation by the gov-

ernment does not transform the actions of the regulated

entity into those of the government.” San Francisco Arts

& Athletics, Inc. v. United States Olympic Committee,

supra, 107 S, Ct. at 2985. And the fact that “the activi-

ties performed by” a private entity “serve a national

interest . . . ‘does not make its acts [governmental |

action.’ ” Ibid., quoting in part Rendell-Baker v. Kohn,

457 U.S. 830, 742 (1982).

It is important to recognize that in this aspect of the case,

the Ninth Circuit rendered a decision of enormous impli-

cations and utterly inconsistent with this Court’s deci-

sions on the constitutional meaning of “state action.” The

28 Other courts, not surprisingly, in the drug-testing context have

held the contrary. Greco V. Halliburton Co., 674 F. Supp. 1447,

1451 (D. Wyo. 1987).

Oe aw thee -

—"

railroad drug tests referred to in Subpart D are a matter

of private decision as to what a railroad expects of its

employees.” Those employees, without resigning, are

able to challenge such requirements through their unions,

under the terms of collective bargaining agreements, and

in fact have had some success in doing so. See Railway

Labor Executives’ Ass’n Vv. Consolidated Rail Corp., 845

F.2d 1187 (3d Cir. 1988); International Brotherhood of

Teamsters V. Southwest Airlines Co., 842 F.2d 794 (5th

Cir. 1988); Brotherhood of Locomotive Engineers V.

Burlington Northern R.R., 838 F.2d 1102 (9th Cir.

1988): Brotherhood of Locomotive Engineers v. Burling-

ton Northern R.R., 838 F.2d 1087 (9th Cir. 1988), pet’n

for cert. pending, No. 87-1631; Railway Labor Execu-

tives Ass’n v. Norfolk & Western Ry., 833 F.2d 700

(7th Cir. 1987): Brotherhood of Maintenance of Way

Emp'oyees Vv. Burlington Northern R.R., 802 F.2d 1016

(8th Cir. 1986). The railroads are no different from

other corporations in requiring such tests. If the rail-

road unions are determined to pursue their unseemly

effort to avoid drug testing of the onerators of lethal

locomotives, they at least should be relegated to the arena

set up by Congress for resolution of collective bargaining

disputes, and not try to elevate such disagreements to

constitutional doctrine.”

2° Respondents acknowledge that “[plerhaps the most important

factor that sets this case apart from all other cases is that the test-

ing is not being performed by a public employer on public employ-

ees.” Br. Opp. at 3 (emphasis in original). Their argument that

compulsion exists applies of course to Subpart C, but not to Subpart

D of the regulations.

%” “Over 25 of the Fortune 500 companies now require drug

tests of all successful job applicants.” International Brotherhood of

Teamsters V. Southwest Airlines Co., 842 F.2d 794, 799 (5th Cir.

1988) (footnote omitted).

31 This suit was brought by the unions against oniy the Secretary

of Transportation and the Federal Railroad Administrator. No

railroads were defendants. Yet, as previously noted, Subpart D of

the regulations does not require drug testing, but simply author-

izes railroads to conduct such programs if they choose. In other

complaints respondents appear to have recognized this by suing the

CONCLUSION

For the reasons stated, the judgment should be

reversed.

Respectfully submitted,

Of Counsel: JOHN G. KESTER *

WILLIAMS & CONNOLLY JOHN J. BUCKLEY, JR.

Hill Building STEPHEN L. URBANCZYK

Washington, D.C. 20006

Hill Building

Washington, D.C. 20006

(202) 331-5000

Attorneys for Amici Curiae

WILLIAM C. SAMMONS

TYDINGS & ROSENBERG

201 North Charles Street

Baltimore, Maryland 21201

STANLEY J. GLOD

2323 Creek Drive

Alexandria, Virginia 22308

CHARLES I. APPLER

HAMEL & PARK

888 - 16th Street, N.W.

Washington, D.C. 20006

THOMAS L. BRIGHT

MARK, WEIGLE AND PERKINS

115 Eas’ ung Street

Shippensburg, Pennsylvania 17257

* Counsel of Record

July 28, 1988

railroads themselves. See Railway Labor Executives’ Ass'n vy. Con-

solidated Rail Corp., 845 F.2d 1187 (3d Cir. 1988); Brotherhood of

Locomotive Engineers V. Burlington Northern R.R., 838 F.2d 1102

(9th Cir. 1988); Brotherhood of Locomotive Engineers v. Burling-

ton Northern R.R., 838 F.2d 1087 (9th Cir. 1988), pet’n for cert.

pending, No. 87-1631. It has been the decision of some (not all)

railroads—not an order of the federal government—that instituted

those programs. Whatever the decision in this litigation as to the

validity of Subpart D, those programs could continue. The rail-

roads, necessary parties, are absent from the case.

ee ee ==

ROBERT W. Katz

GORDON, FEINBLATT, ROTHMAN,

HOFFBERGER & HOLLANDER

233 East Redwood Street

Baltimore, Maryland 21202

WILLIAM L, PoPE

Post Office Box 944

Columbia, South Carolina 29202

BERTRAM D. FISHER

QUELLER, FISHER, BOWER

& WISOTSKY

110 Wall Street

New York, New York 10005

APPENDICES

APPENDIX A

Excerpt from transcript, State v. Gates, No. 87-CR-2420,

Circuit Court, Baltimore County, Maryland, February 16,

1988.

[45] On moving out onto Track 1 out of the yard,

Cromwell sat in the firemen’s seat while the Defendant

sat at the controls. Both faced forward. The Defendant

called out the first two to chree signals within one and

a half miles of the yard as Clear, which would be dis-

played as these signals on this chart. And, at that time,

Cromwell acknowledged the Defendant calling out nine

signals. Although Amtrak operating rules require that

the engineer call each wayside signal and that the brake-

man acknowledge, no more signals further down the track

were called in the remaining nine miles. After the third

signal, Cromwell pulled out a pin joint, which is a very

thin, hand-rolled cigarette, containing marijuana that

he had brought in his grip. Although he had originally

intended to use it on the ride home, Cromwell decided to

smoke it then with the Defendant because the two smoked

while working on one previous occasion. Each man had

about three hits of the joint. Then Cromwell smoked the

remainder in a pipe. Although both the Defendant and

Cromwell were faced forward and could clearly see the

wayside signals, neither called them while smoking the

joint.

[56] The Victims Of The Collison. In addition to the

death of the Amtrak Engineer, Jerome Evans, 15 pas-

sengers were killed as a direct result of the collison.

Caroline and Uriel Bauer, ages 26 and 27, respect.vely,

a recently married couple who resided in Manhattan, New

York, both oecupied the second [57] coach car, which is

the second pasesnger car in the consist. Caroline was pro-

nounced dead at 7:12 p.m. on January 4th, 1987 as a

result of cranial injuries and smoke inhalation. Her

husband, Uriel, was pronounced dead at 3:57 a.m. on

January 5th, 1987 as a result of compression asphyxiation.

Esther Burkhart, age 71, who lived in Philadelphia,

Pennsylvania, also occupied the second car. Mrs. Burk-

hart died as a result of multiple traumatic injuries pri-

marily to her head and chest.

James Clay, age 33, from Vernon, Connecticut, sat in

the second car. Mr. Clay was pronounced dead at 4:38

a.m. on January 5, 1987 as a result of compression

asphyxia.

Thomas C. Colley, age 18, a freshman at the Rhode

Island School of Design, sat in the second car on his re-

turn to school in Providence. Thomas was pronounced

dead at 7:45 p.m. as a result of multiple blunt injuries,

burns and smoke inhalation.

Laura Corti, age 22, occupied the second car on her

return home to New York City. She was pronounced

dead at the scene at 4:05 a.m. on January 5, 1987 from

compression asphyxia.

Louise Edler, age 70, a resident of Wayne, Pennsyl-

vania, occupied the third car in the consist. Mrs. Edler

died of multiple injuries.

Ceres M. Horn, age 16, a resident of Baltimore County,

Maryland was returning to school at Princeton [58] Uni-

versity, where she was a freshman honor student. Ceres,

who sat in the second car, died as a result of compression

asphyxia.

Christiane Johnson, age 20, a senior at Stanford Uni-

versity, rode in the second car traveling from her par-

ents’ home in Potomac, Maryland to New York to visit

her sister. Christiane was pronounced dead at 4:48 a.m.

on January 5, 1987 as a result of compression asphyxia.

Corrine and Kirsten Luce, sisters, age 13 and 16 re-

spectively, occupied the second coach car on their return

home to Westerly, Rhode Island. Kirsten was pronounced

dead at 5:25 a.m. on January 5, 1987 from cranio-

cerebral trauma. Corrine was pronounced dead at 1

o'clock p.m. on January 5, 1987 due to multiple trauma

to the cranio-cervica! and thoracic region.

Adam Moore, age 7, and his grandmother, Pegg.

Moore, age 52, were seated in the second car on their trip

home to Neptune, New Jersey. Adam was pronounced

dead at 11:24 p.m. on January 4, 1987 as a result of

compression asphyxia. Mrs. Moore was pronounced dead

on January 5, 1987 at 1:14 a.m. due to multiple injuries.

Christina Piasecka, age 41, from Warsaw, Poland, oc-

cupied the third car. Ms. Pisasecka died of multiple in-

juries.

Connie Barry, age 31, occupied the second car on her

return home to Ridgefield, Connecticut after visiting

family in the Washington area. Mrs. Barry was trapped

in the wreckage for 10 hours while rescue workers at-

tempted to free her. She [59] was flown by helicopter

to Shock Trauma, where she subsequently died at 6:20

a.m. on January i3, 1987 as a result of multiple in-

juries and hypothermia.

Approximately 174 passengers and crew of the Colonial

sustained serious injuries and required treatment at local

hospitals. Numerous fire fighters, police, paramedics, and

National Guard responded to the wreck site to render

emergency assistan:e.

* * * .

APPENDIX B

EXCERPT FROM PB88-916301

[SEAL |

NATIONAL TRANSPORTATION SAFETY BOARD

RAILROAD ACCIDENT REPORT

REAR-END COLLISION OF AMTRAK PASSENGER

TRAIN 94, THE COLONIAL AND CONSOLIDATED

RAIL CORPORATION FREIGHT TRAIN

ENS-121, ON THE NORTHEAST CORRIDOR

CHASE, MARYLAND

JANUARY 4, 1987

NTSB RAR-88 01

[6] Dumage

The rear Conrail locomotive unit, both Amtrak loco-

motive units, and the head three passenger cars were

destroyed. The middle Conrail locomotive unit was

heavily damaged, and the rear nine cars of the passenger

train sustained varying degrees of damage.

The rear Conrail unit was virtually disintegrated with

parts scattered across the tracks and property east of the

tracks. The largest piece of wreckage came to rest about

150 feet northeast of the collision point. The rear of

the middle Conrail unit was crushed by the rear unit.

Uncoupled from the lead unit, it was propelled forward

on track 2 for about 700 feet. Only the rear truck of

this unit derailed. The lead Conrail unit sustained rela-

tively superficial damage, although driven forward about

900 feet, it was the only piece of equipment in the two

trains that was not derailed.

The forward cab and superstructure of the lead Am-

trak locomotive unit was crushed downward and inward

to the underframe. Separated from the trucks, the re-

mains of the car body came to rest west of the tracks

about 400 feet north of the collision point. The trailing

Amtrak unit remained in line with the track, although

separated from its trucks, and came to rest leaning about

45° to the right at a point about 450 feet north of the

collision point (see figure 3).

The head car of the passenger train, an unoccupied

food service car, came to rest behind the trailing Am-

trak locomotive. After passing over the food service car,

the second car came to rest on its side on top of the rear

of the trailing Amtrak locomotive unit. It was more or

less perpendicular to the track, badly deformed and bent

or crimped downward in the middle at an angle of about

30° (see figure 4). The third car stopped diagonally to

the track, leaning to one side, on top of the crushed food

service car. One end was crushed between the second

and fourth cars. The fourth car stopped diagonally to

the track, upright and with the car body essentially in-

tact. The 5th through 12th cars remained coupled and

upright, although the 5th, 7th, 8th, and 9th cars had

jackknifed and stopped diagonally to the track. The other

derailed cars remained in line with the track (see figure

5).

{12} Derailed locomotive units and cars struck and

brought down two steel support poles and the electrical

catenary that had been suspended over the four tracks.

As a result, the catenary wires over the four tracks were

extensively damaged. In addition, the high-tension power

transmission lines connecting the NEC substations with

the power source were knocked down, which resulted in

the immediate loss of propulsion power for all electrically

powered trains between Washington, D.C., and a point

22 miles north of Gunpow. The downed wires also ig-

nited diesel fuel from the destroyed Conrail locomotive

unit producing dense, black smoke that entered the

wrecked passenger cars. Small fires also broke out in

residential property and wooded lots adjacent to the ac-

cident site.

The derailment destroyed switch 12 and destroyed or

damaged about 2,800 linear feet of each of the four

tracks at the accident location. About 5,700 linear feet

of the tracks had to be replaced along with two steel

support poles.

Rescue and wreckage clearing operations prevented the

restoration of through-train operations for 2 days re-

sulting in disruption of travel and a substantial loss of

revenue to the carriers. In addition, Amtrak incurred

substantial expense in moving stranded electrically pow-

ered trains and providing alternative transportation to

passengers after the accident.

a ee

The damage was estimated as follows:

Conrail locomotives $ 1,325,000

Amtrak locomotives 7,400,000

Amtrak cars 6,423,000

Track 500,000

Overhead catenary system 285,000

Signals and communications 30,000

Cost of clearing wreckage 598,000

Total $16,561,000

[55] Before December 1986, the Conrail engineer had

been convicted of 12 traffic offenses, including 9 speed-

ing violations that resulted in two suspensions of his

driver’s license between 1972 and 1985. Early on the

morning of December 5, 1986, after leaving a tavern, the

engineer was arrested for driving through a red traffic

signal, driving through a stop sign, and driving while

intoxicated (DWI) after failing police sobriety tests and

submitting to a “breathalizer” examination that revealed

a 0.12 percent blood alcohol concentration (BAC).

Following the accident, the engineer voluntarily un-

derwent a supervised chemical-dependency program in-

volving his hospitalization for 7 weeks at a private

Baltimore-area treatment facility. He subsequently

pleaded guilty to and was convicted of DWI and the

other charges; he was fined $1,000 and ordered to un-

dergo counseling.

[57] When questioned by Safety Board investigators,

the engineer and brakeman of train ENS-121 could not

recall any event or occurrence that may have distracted

them as they approached Gunpow. However, the engineer

did recall that he and the brakeman were conversing at

the time. The brakeman said he was standing up and

was preparing his lunch. As a result, he said he did not

observe any of the wayside signals approaching Gunpow.

He further said that he observed an “approach medium”

aspect on the cab signal at the location of signal 816-1.

Thereafter, he said, “I didn’t observe the cab signal at

all. I wasn’t even looking at the cab signal.”

* * *

[62] Medical and Pathological Information

. Pathological examinations indicated the 16 fatally in-

jured persons died from the following causes:

6 Compression asphyxia *°

6 Muitiple trauma

1 Multiple trauma and hypothermia

1 Multiple trauma and smoke inhalation

1 Cranial trauma and smoke inhalation

1 Cranial trauma

[ 63] Many of the persons aboard train 94 who sus-

tained survivable trauma were injured about the head,

face, and mouth as a result of being thrown into seats

or against other objects, and ‘or by being struck by lug-

gage and other articles that fell from the racks above

the seats. Of the 24 persons aboard train 94 who had

moderate to serious injuries, 11 sustained bone fractures,

§ sustained severe contusions and or lacerations, 3 sus-

tained concussions, and 2 sustained cervical spinal

trauma.

The Conrail engineer received only minor injuries :'s

a result of the accident. The Conrail brakeman had a

fractured leg that he stated he sustained either when he

alighted from the locomotive or when he ran from the

track after the collision.

Toxicological Testing

At the time of this accident, FRA re i

é ’ gulations (49

CFR Part 219, Subpart C) stipulated that all train

crewmembers and other railroad employees subject to

*° Compression asphyxia is asphyxiation (the lack of oxygen)

often the result of trauma to the respiratory system,

—< — wh erm OF

the Federal Hours of Service Act involved in a major

train accident resulting in one or more fatalities were

subject to mandatory toxicological testing. Dispatchers

and operators directly involved in the accident were ex-

pressly covered under this requirement. Blood and urine

samples for testing were specifically required from each

surviving employee; body fluid and/or tissue samples

were required to be taken from fatally injured employ-

ees. The regulations further required that the railroad

“make every reasonable effort to assure that samples

are provided as soon as possible after the accident.” The

FRA sold kits to the railroads that included vials for

holding samples, as well as labels and containers for

shipping the samples to the Federal Aviation Adminis-

tration’s Civil Aeromedical Institute (CAMI) Forensic

Toxicology Research Laboratory at Oklahoma City,

Oklahoma.

Both Conrail and Amtrak had amended their rules to

conform with the FRA testing regulation. Amtrak had

included its new rule 100G-Al in NEC timetable No. 4,

in effect, at the time of the accident (see appendix D).

The new rule stated that employees would be required

to provide blood and urine samples after certain acci-

dents and incidents as provided for under the Federal

regulations. It also stated that employees refusing to

submit to testing would be removed from service and

would be subject to dismissal. According to Amtrak, cor-

ridor supervisors and managers were given a 2-day train-

ing course on the testing requirements and the techniques

in taking and shipping samples to CAMI.

The surviving crewmembers of train 94, the Edgewood

block station operator, and the E-section dispatcher testi-

fied that they understood Amtrak rule 100G-Al and ex-

pected that they would be required to submit to toxico-

logical tests after the accident.

The surviving crewmembers of train 94 were taken

to hospitals for treatment of injuries. They were not

accompanied by Amtrak supervisors and only one, the

10a

extra assistant [64] conductor, provided a specimen for

testing. According to the extra assistant conductor, he

gave a urine sample about 6% hours after the accident.

No blood was drawn. The CAMI lab’s screening of the

urine wi.3 negative for alcohol and illicit drugs, but was

positive for Acetaminophen (a pain relief medication)

and phyenylpropanolamine (an appetite supressant or

decongestant). The CAMI report described these as

“. . . compounds probably from over-the-counter or pre-

scription medication.”

The Edgewood block station operator, accompanied by

his supervisor, provided samples of his blood and urine

about 4 hou:s 40 minutes after the accident. CAMI’s

screening of the samples were negative for alcohol and

drugs. No other dispatchers or operators were either

asked to submit or submitted samples for testing.

A Baltimore County Fire Department officer tes ‘ified

that he detected a strong odor of alcohol on the breath of

the flagman of train 94 when he met him shortly after

the accident. He also stated that he noticed nothing un-

usual about the way the flagman walked or talked at

time. The fire department officer was a trained para-

medic who had treated numerous accident victims later

determined to have been under the influence of alcohol.

The officer reported his observation to his superior, the

deputy fire chief, the day after the accident. The flag-

man testified that he had not consumed any alcohol be-

fore, during, or after his tour of duty on January 4.

Amtrak employees and supervisors who met the flagman

after the accident stated that he appeared to be normal

and that they did not detect the odor of alcohol.

A tissue sampie from the Amtrak engineer was sent

to CAMI for testing; the test was negative for alcohol.

The toxicological report also stated that the specimen was

unsuitable for further analysis.

The Amtrak general superintendent testified that he

was aware that the FRA regulations and the Amtrak

_ ——

lla

rule regarding toxicological testing did not give him ¢is-

cretion in deciding which employees should be tesved.

The general superintendent also testified that he decices

that only the Edgewood operator “might have been

contributory” and ought to be tested.

The senior Amtrak officer at the accident site was the

assistant vice president-transportation. When he arrived

at the site, the flagman and two other assistant conduct-

ors had not provided toxicological samples. The assistant

vice president also testified that he decided that the per-

formance of the crew of train 94 and the dispatcher had

no bearing on the accident. In addition, he said that he

thought that he had discretion in the matter, and there-

fore, he did not require the crewmembers to be tested.

On January 6, 1987, Amtrak’s general manager in-

formed the Safety Board that the dispatcher and the

surviving crewmembers of train 94 had not been re-

quired to submit to testing. Shortly afterward, the Am-

trak assistant vice president-transportation [65] advised

a member of the Safety Board that he had talked to the

FRA associate administrator for safety. The assistant

vice president related that he told the associate adminis-

trator, “We’re running out of time. They’re [surviving

crewmembers] really not involved. We'd like some relief

on that... referring to the toxicological tests. We do

not want to put these people through more. It would

not prove anything.”

According to the assistant vice president, the associate

administrator replied, “Yes, I understand and I agree.”

(See appendix J.) During the Safety Board’s public

hearing, the FRA associate administrator testified that

he did not think Amtrak was asking for a waiver of non-

compliance after failing to comply with the regulations.

On January 7, 1987, following the disclosure that the

surviving crewmembers of train 94 had not been tested

in accordance with the rules, the FRA Office of Safety

cited Amtrak for violations of the testing regulations.

12a

At the Safety Board’s insistence, Amtrak asked the

dispatcher, conductor, flagman, and regular assistant

conductor to provide blood and urine samples for testing

on January 8. These samples were sent to the Center for

Human Toxicology (CHT) in Utah. According to the

reports furnished by the CHT, no drugs were detected

in the samples proviued by the assistant conductors and

the dispatcher. The samples provided by the conductor

were found to contain small quantities of a muscle re-

laxant and its metabolites.

Less than an hour after the accident, Conrail officials

at the accident site had put the engineer of train ENS-

121 in an ambulance to be taken unescorted to a hospital.

About 4 p.m., they learned that he had left the ambu-

lance and was still at the accident site. The Conrail

Baltimore terminal superintendent then directed the Bay

View trainmaster and a Conrail police captain to take the

engineer to a hospital to provide samples for toxicological

tests. After locating the engineer, they arrived at Frank-

lin Square Hospital at 4:25 p.m., and the engineer was

immediately taken for examination and x rays.

At 4:30 p.m., the hospital drew blood from the en-

geneer for diagnosiic purposes. This blood was screened

for drug use; the hospital’s records show that the test

revealed less than 10 mg/dl blood alcohol and was nega-

tive for all other drugs including the cocaine metabolite

(benzoyleegonine) and phencyclidene (PCP). At 5:30

p.m., the trainmaster located the doctor who was examin-

ing the engineer and requested that more of the en-

gineer’s blood be drawn for FRA testing. The blood

sample was drawn about 6:00 p.m.; shortly after, the

trainmaster witnessed the engineer provide a urine

sample.

The trainmaster and an Amtrak official also witnessed

the drawing of enough blood to fill two 10-ml “vacuu-

tainer” vials that were in the FRA test kit the train-

master had brought with him. After sealing the vials,

13a

the trainmaster labeled the seals [66] and had the en-

gineer initial them as prescribed. He then iced and

sealed the container and affixed the shipping labels,

completing the procedure at about 6:10 p.m.

At 8 p.m., Conrail supervisors learned that the brake-

man had been admitted to Johns Hopkins Hospital. The

Bay View trainmaster arrived at that hospital about 9

p.m. with an FRA test kit. He was not able to obtain

the urine sample until 9:50 p.m. or the blood sample

until about 10:15 p.m. Again, he witnessed the taking

of the samples; in this instance, enough blood was drawn

to fill three 10-m] vials. He repeated the sealing, label-

ing, and packing procedures he had followed in the

case of the engineer.

The specimen containers from the Conrail engineer

and brakeman were shipped by air express to CAMI

that night. CAMI subsequently reported finding the fol-

lowing marijuana concentrations in the specimens:

Nanograms per Milliliter

Hours after

Individual delta-9-THC' THC-COOH? Accident

Engineer-serum <5 42 5.0

Engineer-urine 67, 72 5.0

Brakeman-serum <5 13 8.5

Brakeman-urine 87, 1443 8.5

* Delta-9-THC (delta-9-tetrahydrocannabinol) is believed to be

se primary psychoactive ingredient of the marijuana (cannabis)

plant.

* THC-COOH (sometimes rendered as 9-carboxy-THC) is a major

nonpsychoactive metabolite of marijuana found in blood and urine.

*CAMI reported two values on the urine marijuana carboxy

(COOH) metabolite concentration using two different quantification

techniques. The second values shown for THC-COOH were deter-

mined with the addition of a deuterated standard to the urine

samples.

l4a

Only marijuana was found in the CAMI analysis; tests

for the other drugs in the protocol were negative. CAMI

reported less than 5 ng/ml of delta-9-THC in the serum

of both men. According to the CAMI toxicologist, the

level of delta-9-THC below 5 ng/ml was not quantified,

although 5 ng/ml was apparently not the minimum level

of sensitivity of the test.

After the Safety Board toxicologist reviewed the

CAMI toxicology laboratory’s analysis of the samples and

after discussions among the Safety Board, the FRA, and

CAMI, the Safety Board requested that any unused por-

tions of the samples be shipped to the CHT for con-

firmation analysis. As a result, the serum and blood

from the brakeman and urine from the engineer were

shipped to the CHT. The CAMI toxicologist reported

there [67] was insufficient serum from the engineer for a

confirmation analysis. In addition, the Safety Board sent

the vacuutainer vial that contained the hospital’s diag-

nostic bleed sample taken from the Conrail engineer to

the CHT for testing. CHT reported that the three drops

of blood in the vial were insufficient for marijuana

analysis.

The CHT reported the following results of its testing

of the specimens forwarded by CAMI:

Nanograms per Milliliter

Hours after

Individual delta-9-THC THC-COOH Accident

Engineer-serium No sample -— —

Engineer-urine 182 5.0

Brakeman-serum Negative * 23 8.5

Brakeman-urine 80 8.5

In addition to cannabinoids, the CHT drug screen

protocol included ethanol, opiates, PCP, amphetamines,

barbiturates, cocaine, tricyclic antidepressant, antihista-

*The sensitivity limit of serum delta-9-THC by the technique

used by CHT is about 0.5 ng/ml.

l5a

mines, carbamates sedative (meprobamate), and syn-

thetic narcotics (meperidine or Demerol). The Conrail

engineer’s sample was found to be negative for all of

these. The Conrail brakeman’s urine tested positive for

PCP; a gas chromatography/mass spectrometry (GC/

MS) verification and quantification showed 45 ng/ml of

PCP in his urine.

Inconsistencies in the CAMI test results and documen-

tation prompted an investigation of the CAMI toxicology

laboratory a month after the Chase, Maryland, accident. °

Subsequently, the inspector general of the DOT took over

the investigation, the laboratory was closed, the bio-

chemist in charge of the laboratory was relieved of his

duties, and the FRA began using the CHT to analyze

test samples.

On May 26, 1987, the CAMI biochemist pleaded guilty

to Federal felony charges of providing false information

to the FRA. According to the FRA, the CAMI laboratory

had reportedly falsified blood serum test results in some

previous train accident-related cases that occurred after

the FRA test regulations were implemented early in

1986. The laboratory lacked the sophisticated GC/MS

equipment needed to make the tests until late 1986, and

no one in the laboratory had the expertise [68] to use

the equipment when the Chase railroad accident tests

were performed. The Safety Board further learned that

the GC/Ms equipment had not been calibrated for ac-

curacy since December 5, 1986; moreover, it had been

improperly calibrated at the ti ne of the testing and had

not been recalibrated since. A deuterated internal stand-

ard was not used in the serum marijuana analysis, nor

were the serum THC data retained after the tests were

made.

Following these developments, the CHT staff collected

all FRA sample containers at the CAMI laboratory, in-

cluding the original urine and blood sample containers

for the Conrail engineer and brakeman. The engineer’s

l6a

blood sample container held a small amount of blood that

was subsequently diluted, analyzed, and found to contain

52 nanograms per milliliter of the carboxylic acid metab-

olite (THC-COOH) of marijuana. The diluted blood

sample was reported to contain less than the test detec-

tion level of psychoactive delta-9-THC. However, due to

the very limited sample, the sensitivity to detect THC

was reduced. The urine sample of the engineer was

found to contain 212 ng/ml of the carboxy metabolite of

marijuana (see appendix K).

The specimens obtained for the Conrail brakeman were

also reanalyzed. The results reported by CHT were 15

ng/ml of THC-COOH in the blood, 109 ng/ml of THC-

COOH in the urine, and 64 ng/ml of PCP in the urine

(see appendix K).

* * * *

[75] According to the report of the Baltimore County

Fire Department, the county’s emergency communica-

tions center received two emergency calls reporting a

“big explosion on Eastern Avenue” at 1:29:47 p.m. and

1:29:49 p.m. On the basis of these calls, the Chase sta-

tion units, three additional engine companies, a ladder

truck, two heavy rescue trucks, a three-piece hazardous

materials unit, a battalion chief, and a parademic field

supervisor were dispatched to the scene at 1:31:46 p.m.

The Chase units arrived at the scene at 1:37 p.m., but

while en route, the medic unit made a “heavy smoke

showing” report at 1:36 p.m. and requested that four

additional medic units be dispatched. At this time the

paramedic field supervisor, while en route ot the accident

site, upgraded the request to eight medic units. This in-

itiated the “major medical command mode” portion of the

fire department’s emergency plan, mobilizing the rermain-

ing medic companies in the county. Four additional fire

companies, an air unit, and a mobile command post were

dispatched at 1:42 to the Harewood Road area on the

west side of the tracks. Also at 1:42 a battalion chief

arrived and took overall command at the site. At 1:49,

17a

the “major command mode” of the fire department's

emergency plan was implemented mobilizing all remain-

ing county volunteer units.

[102] Despite these pharmacokinetic limitations, some

conclusions can be made regarding the use of marijuana

by the two Conrail crewmembers based on studies of the

blood and urine concentrations of THC and its metabol-

ites in volunteer subjects.

Almost 9 hours after the accident, the brakeman had

a metabolite (THC-COOH) serum concentration of 23

ng/ml, a reported THC of 0, and a urine metabolite con-

centration of 80 ng/ml. Analysis of the second sample

gave a urine concentration of 109 ng/ml. Assuming the

brakeman did not use marijuana between the accident

and the time of sampling, this information fits the pro-

file of a frequent user. Assuming that the brakeman

was a frequent user, then it can be concluded that he

used marijuana within 2 days of blood sampling and

that use could hav> occurred within 24 nours of the

sampling time or within the 15-hour period before the

accident.

The brakeman also had 45 ng/ml of PCP in his urine.

In a human volunteer study, PCP was shown to have a

half-life .* about 17 hours, although in two individuals

it was as long as 2 days, and in one subject, it was as

short as 7 hours. Since blood concentrations are not

available, the Safety Board could not determine when

the brakeman ingested PCP or its effect on his perform-

ance at the time of the accident. If the marijuana and

the PCP had been taken at the same time, the finding

of PCP in the urine sample and the half-life of PCP

36 Peat, Michael A., McGinnis, K. M., et al, “The Disposition of

9-Tetrahydrocannabinol, 11-Hydroxy-9-Tetrahydrocannabinol, and

11-Nor-9-Carboxylic-9-Tetrahydrocannabinol in Frequent and Infre-

quent Marijuana Users,” submitted to Journal of Clinical Pharma-

cology and Experimental Therapeutics.

18a

would support an assessment that marijuana was used

within 24 hours of the time the samples were provided.

From the engineer’s second set of urine and blood

specimens, CHT obtained THC-COOH values of 212 ng/

ml and 52 ng/ml, respectively. Urine concentrations of

THC-COOH vary greatly and are not definitive in es-

tablishing the time of use. Comparison of the results

of the blood analysis with those reported by Peat sug-

gests marijuana use within 24 hours before the samples

were taken if the engineer is characterized as a heavy

user. A blood value of 52 ng/ml clearly indicates that

the engineer was a frequent user. A frequent user hav-

ing a carboxy metabolite blood level of 52 ng/ml would

be expected to have had a THC concentration in the

range of 1.0 to 10 ng/ml. Since values above 3 ng/ml

would probably have been detected by the CHT analysis,

it is reasonable to assume that THC concentration in the

engineer’s blood would have been less than 3 ng/ml at

the time the specimens were given. The THC concen-

tration at the time of the accident would have been con-

siderably greater.

{103} Mason and McBay have suggested that 5 ng/ml

of THC in blood be used as a conservative limit for the

presumption of a significant degree of a marijuana-in-

duced effect.** According to Peat, data for both light

and heavy users indicate blood THC concentrations are

less than 5 ng/ml 1 hour after smoking one marijuana

cigarette. Behavioral studies suggest, however, that

pharmacological effect due to marijuana use persist

longer than 1 hour.

A number of studies have determined the effects of

marijuana use on a variety of performance tasks includ-

ing driving an automobile and flying an aircraft simula-

37 Tbid.

88 Mason, A. P. and McBay, A. J., “Ethanol, Marijuana, and Other

Drug Use in 600 Drivers Killed in Single-Vehicle Crashes in North

Carolina, 1976-1981,” Journal of Forensic Sciences, 1984.

19a

tor. One of these studies shows that performance decre-

ment occurred up to 7 hours after smoking a marijuana

cigarette depending on the performance parameter meas-

ured.” The THC concentration correlated with the per-

formance decrement. Another study using a flight simu-

lator shoked a decrement for up to 24 hours after use of

a marijuana cigarette.” A third study looked at the

combined effects of marijuana and alcohol and reported

that the combined effect was more than the expected ad-

ditive effects of the individual drugs.*"

The above studies on marijuana use and performance

appear to agree that there is a measurable decrement

in performance for a period that is dependent on type

and complexity of the performance function that is meas-

ured. The concentration profile of the engineer is well

within the limits of the above studies since 5 hours after

the accident he had a blood acid metabolite value of 52

ng/ml.

The 5-hour delay in obtaining the engineer’s blood and

urine samples negates the ability of the tests to deter-

mine the presence of a BAC level of about 0.06 percent

or less at the time of the accident. It is known that the

engineer had used alcohol on 2 successive nights before

the day of the accident. The fact that he had pleaded

guilty to a charge of driving while intoxicated during the

early morning hours about 2 weeks before the accident

and had voluntarily admitted himself into a_ hospital-

administered chemical dependency rrogram after the ac-

cident substantiates his frequent us of alcohol.

39 Benneti, Gene, Licko, V., and Thompson, Travis, “Behavioral

Pharmacokinetics of Marijuana,” Psychopharmacology, Vol. 85,

1985.

4 Yesavage, Jerome A., et al, “Carry-Over Effects of Marijuana

Intoxication on Aircraft Pilot Performance: A Preliminary Re-

port,” American Journal of Psychiatry, Vol. 142, 1985.

41 Sutton, Lawrence R., “The Effects of Alcohol, Marijuana and

Their Combination on Driving Ability,” Journal of Studies on

Alcohol, Vol. 44, 1983.

20a

[104] In his study, Sutton had found significant driv-

ing impairment when marijuana and alcohol equivalent

to a 0.06 percent BAC were used in combination. If the

Conrail engineer metabolized ethanol at the average rate

of 0.015 percent per hour (conservative for a heavy

drinker), then the ethanol in his blood would not have

been detectable when he gave a blood sample 5 hours

after the accident if he had a BAC of 0.06 percent at

the time of the accident.

The literature cited previously supports the finding

that the engineer’s performance may have been impaired

from the use of marijuana. Further, this could have

been exacerbated if ethanol had also been present in the

engineer’s blood or if he had been suffering from alcohol

abuse the night before.

The Safey Board believes that there were a significant

number of manifestations of less than satisfactory per-

formance by the Conrail crewmembers—the most evident

of which was their failure to respond to restrictive sig-

nal aspects. The other manifestations of impaired per-

formance include: their failures to resolve the console

radio problem and to make the required predeparture

brake tests; their failure to properly test the ACS sys-

tem including the alerter whistle; the engineer’s possible

mistaking of the deadman cutout for the ACS cutout

lock, and the engineer’s delayed throttle responses. The

Safety Board concludes that, based on this accumulation

of manifestations of degraded performance and on the

results of the toxicological testing, that the crewmembers

of train ENS-121 were impaired at the time of the acci-

dent from the effects of marijuana possibly combined

with the effects of the use of alcohol the night before the

accident.

The Safety Board concludes that the ENS-121 crew’s

use of marijuana led to their inattention to their pri-

mary duties of operating the locomative in a safe manner.

* * + am

2la

|123] Supervision of Toxicological Testing.—At the

time of this accident, Federal regulations required all

train crewmembers, dispatchers, operators, and other em-

ployees subject to the Federal Hours of Service Act to

submit specimens for toxicological testing “as soon as

possible” after a major accident that resulted in fatali-

ties and in which they had direct involvement. The reg-

ulations required that the railroads make “every pos-

sible effort to assure that samples are provided” for

testing. Amtrak and Conrail had included this testing

requirement in their operating rules and had instructed

supervisors and employees on its provisions and the proper

use of the testing equipment. All Amtrak and Conrail

crewmembers as well as the dispatcher and block station

operators were required to be tested, and they stated that

they expected to be tested.

Amtrak’s safety supervisor and assistant vice presi-

dent of transportation arrived at the site 30 minutes and

1 hour 25 minutes after the accident, respectively. Three

Amtrak superintendents were there by 3:30 p.m., and the

general superintendent arrived an hour later. Conrail’s

superintendent at Baltimore testified at the public hear-

ing that he was on the scene 50 minutes after the acci-

dent. Shortly afterward, he was joined by a trainmaster

and a road foreman of engines. Still later, a Conrail

police captain and another trainmaster arrived. Thus,

within 3 hours of the accident, at least six Amtrak and

five Conrail supervisors were on the scene.

Amtrak officials testified at the public hearing that be-

cause the accident occurred on Amtrak and all involved

were subject to Amtrak rules and supervision, it was

Amtrak’s responsibility to enforce the testing require-

ment. From the time the first supervisors arrived at the

scene, each crewmember should have been monitored and

taken promptly to provide specimens for testing.

Of the seven Amtrak employees who were subject to

the testing requirements, only the Edgewood block sta-

22a

tion operator was taken to a hospital by a supervisor

for testing. Amtrak officials did not accompany the other

employees to hospitals to ensure that specimens were

furnished. One Amtrak assistant conductor did have a

urine specimen taken that was forwarded to CAMI for

— although the stipulated procedures were not fol-

lowed.

Although a fire department official testified that he

detected a strong odor of alcohol on the breath of the

flagman of train 94 not long after the accident, he ob-

served nothing else about the flagman that might have

indicated he was intoxicated. Further, no other crew-

members corroborated the fire department official’s tes-

timony and some stated the flagman showed no signs of

being under the influence of alcohol. In the event the

conductor was incapacitated, the flagman would have

been in charge of the crew of train 94. In that position,

he would have had the responsibility for the train’s pas-

sengers. Because of the importance of the position the

flagman may have held and because he was a crewmem-

ber aboard a train involved in an accident, the Safety

Board believes that testing of the flagman was particu-

larly important. Because specimens for testing were

not taken until several days after the accident, it is not

possible to prove or disprove the testimony of the fire

official concerning the flagman’s condition.

Similarly, the Safety Board could not establish if the

other crewmembers of train 94 and the dispatcher were

free of alcohol and drugs because Amtrak’s ranking of-

ficials at the accident site decided their performance had

no bearing on the accident. The Amtrak assistant vice

president of transportation circumvented his own com-

pany’s rule and the Federal regulations when he decided

not to have these persons submit to testing.

Following the accident, the Conrail engineer remained

at the site and talked with many people including the

Conrail terminal superintendent who, about an hour af-

23a

ter the accident, ordered the engineer to be put in an

ambulance to transport him to a hospital. However,

since no supervisor escorted the engineer to the hos-

pital, the engineer was able to leave the ambulance un-

detected. Valuable time was lost because the Conrail

trainmaster at the accident site did not escort the en-

gineer to the hospital for testing.

The Safey Board determined that neither the Conrail

terminal superintendent nor the Amtrak assistant vice-

president of transportation attempted to learn where the

engineer had been taken and to instruct a supervisor to

take samples. About 21, hours after the accident, it was

discovered that the engineer was still on the site and

the Conrail trainmaster was told to accompany him to a

hospital. Another 2 hours passed be*ore a blood speci-

men was drawn for FRA testing, although the engineer

had been at the hospital with the trainmaster for more

than 11; hours.

The brakeman did not provide specimens until 8 hours

45 minutes after the accident. His whereabouts were un-

known to Amtrak and Conrail officials for more than 6

hours.

The Safety Board is deeply concerned about the failure

of Amtrak and Conrail supervisors to comply with the

intent of the FRA regulations for postaccident toxicologi-

cal testing and about FRA’s inability to achieve timely

compliance with its regulations by these two railroads

in this accident. The Safety Board is pleased that both

railroads have now implemented all parts of the FRA’s

regulations, including reasonable cause testing. However,

the Safety Board is not convinced that the compliance

deficiencies that occurred in this accident will not re-

occur.

* * + *

[144] Probable Cause

The National Transportation Safety Board determines

that the probable cause of this accident was the failure,

24a

as a result of impairment from marijuana, of the en-

oineer of Conrail train ENS-121 to stop his train in com-

pliance with home signal 1N before it fouled track 2 at

Gunpow, and the failure of the Federal Railroad Admin-

istration (FRA) and Amtrak to require and Conrail to

use automatic safety backup devices on i

\ ‘ all trains on

the Northeast Corridor. sae

+ * * *

RECOMMENDATIONS

Based on its investigation of this accident, the National

Transportation Safety Board on January 15, 1987, is-

sued Safety Recommendations R-87-1 through -3 to the

National Railroad Passenger Corporation (Amtrak) :

[146 ]—to the Consolidated Rail Corporation (Conrail) :

Improve the methods of identifying employees who

abuse alcohol and/or drugs. (Cl le

tion) (R-88-13) & ass II, P) lority Ac-

—to the Federal Railroad Administration:

Expand and intensify its oversight of Amtrak’s op-

erating practices, supervisory efficiency checks, and

compliance with Federal safety regulations (includ-

ing the requirements for postaccident toxicological

testing), and periodically provide the Safety Board

with its assessment of Amtrak’s performance in

these areas. (Class IT, Priority Action) (R-88-14)

* ° * *

25a

APPENDIX C

Excerpt from deposition of Ricky L. Gates, Jn re Rail

Collision Near Chase, Maryland on January 4, 1987 Liti-

gation, MDL No. 728, U.S.D.C., D. Md., March 24, 1988.

[74] Q. When you left the Bayview Yard, what did

you and Mr. Cromwell do?

A. We started some general conversation, I don’t

remember specifically what all the conversation was. It

generally had to do with he was saying about a trip

before then, we were complaining about the condition of

the engines and that they should have been prepared for

us before we signed up, and as we got north of River

Interlocking, I believe, he had pulled out half of a pin

joint of marijuana and asked if I wanted to smoke some.

Q. Up to that point had you been calling out [75]

the signals?

A. Those two signals I did call.

Q. Which ones were they?

A. North Point and River.

Q. Was Mr. Cromwell also required to call out the

signals?

A. Yes. >

Q. Did he call out those first two signals?

A. I don’t recall him calling them out, no.

Q. Do you recall him calling out any of the signals?

A. No.

Q. Did you call out any signals after River?

A. Not to my knowledge. Well, other than the stop

signal, when I saw that.

Q. At the Gunpow Interlocking?

A. Yes.

Q. Okay. What did you do when Mr. Cromwell pulled

sut the marijuana cigarette at about River?

A. He asked me if I want to smoke it then, and I

told him it was his, it was up to him, that I [76] would

prefer if we were going to smoke anything, to wait until

we got on the Port Road branch.

26a

MR. SARSFIELD: Wait until what? I am sorry.

A. Until the Port Road branch.

Q. What was the reason you wanted to wait for the

Port Road branch?

A. The scenery was better, the river on one side, the

trees on the other, I felt is was more enjoyable there.

* * * *

[77] A. The next thing I remember. we were still talk-

ing. I don’t remember the exact nature of the conver-

sation, we were still in the nature of complaining about

the engines and him telling me something about the trip

before then and his brother or something. And he put

what was left of the joint into a pipe and he started

lighting it up.

Q. At that point you had had three hits on the joint?

A. I believe so, yes.

Q. And then he put the remains of the joint into

a pipe; is that correct?

A. Yes.

Q. What did he do with that?

A. He lit it up. He passed it to me at one point, but

it had gone out, and I could—I don’t recall whether

I either tasted it before I tried to [78] light it, or I just

smelled it, but I could smell the remnants of PCP in the

pipe. And I handed it back to him and more or less

I was agitated about it, and I mentioned it to him, and

he told me it was his girlfriend’s pipe and she had proba-

bly smoked it.

Q. Does PCP have an odor?

A. Yes, like parsley flakes. That was the only experi-

ence I had ever had with it years before, and that is what

it smelled like, and so that’s what I assume it was.

# * * *

[82] A. Next thing I recall is through the conversa-

tion, I was running assuming we were going to go out or

keep moving at Gunpow Interlocking, and I was trying to

27a

make, save as much time as I could, I pulled the throttle

out a little more is the last thing I remember.

[88] Q. Now, as you were approaching signal 816,

what were you looking at?

A. I don’t recall specifically, for the same reasons.

I know I was talking to Butch, I glanced at him, because

that’s at the point where he was cutting off the tops of

the water bottles, and I observed part of that. I probably

glanced at the [89] speed indicator at some point, the

scenery around me and at the signal. I was taking in

quite a bit.

[104] Q. Allright. What happened next?

A. Like I say, the general conversation, looking

around at the scenery, then I suppose at approximately

five to six pole lengths at the point [105] where I would

have started slowing down to 40 before the interlocking I

glanced up and I noticed the stop signal in front of me.

I yelled to Butch more or less something obscene was

the adjective I used that we got a stop signal, put it into

emergency with the automatic brake, put the independent

brake all the way on, put the throttle completely in the

off position, took the reverser and threw it to the south

position, pulled the throttle back out, which is called

plugging the engines. We started sliding through. I

grabbed the portable radio, just before we got under

the signal. I started yelling three emergencies and started

yelling our location and what was going on, that we

were going through the stop signal, and I was more or

less giving a play by play, that I wasn’t sure we were

going to get through the switch or not. Butch at that

point was putting on his jacket, and he got off around

the front of the engine and went down on the steps and

as we slid slowly through the switch, he stepped off on

to the ground and stood [106] at the switch as we con-

tinued sliding further.

e e e e

28a

[140] Q. What quantities were you normally drinking

alcohol?

A. Anywheres from a minimum of a six-pack a day

to a case and a half, two cases a day.

Q. A six-pack to a case or two cases a day; is that

correct?

A. Sometimes, yes.

Q. And what was your average consumption? Was it

closer to the one case?

[141] A. Average consumption was probably close to

a case, yes.

MR. SARSFIELD: What was the answer to that?

Average consumption was what?

A. Probably close to a case of peer a day.

Q. It was that pretty much every day?

A. Almost every day, yes.

Q. And by a case of beer, of course, we are referring

to 24, 12-ounce cans of beer; is that correct?

A. Yes.

Q. For what period of time had you been consuming

alcohol at that rate of almost a case a day, or over a

case a day?

A. I would say for close to a year at that time.

Q. And during what times of day would you do your

drinking?

A. Any time.

Q. What time of day would you start drinking?

A. Any time.

[142] Q. How frequently were you using marijuana

at this point in time? é

A. Maybe once or twice a week.

Q. How much would you use over the week, in terms

of a quarter of an ounce?

[143] A. Usually two or three joints at that time.

Prior to Christmas, I believe a couple of weeks before

Christmastime. I had been on vacation for a week, and I

had smoked about a quarter ounce of marijuana while I

was on vacation.

29a

Q. For what period of time had you been using mari-

juana at this rate?

A. Since about the age of 18.

& * * ®

BY MR. BUCKLEY:

Q. Would you admit that if you had not had the dis-

tractions and had been paying attention, you would have

been able to see the home signal in time and to have

stopped before going through the switch at Gunpow?

A. Probably would have, yes.

+ % * *

[215] <A. I was starting to believe that I was psycho-

logically addicted to marijuana, that—because I couldn’t

make myself quit, unless I replaced it with alcohol. And

I was daydreaming quite a bit, when I was off to myself.

Q. Did you ever use hash?

A. Yes.

Q. How frequently did you use hash, hashish?

A. Not very frequently, you know. You use it just

the same way as I would marijuana, but it wasn’t as

available.

Q. Did you use it in 1986?

A. Ican’t recall specifically ; maybe.

Q. Did you ever use marijuana or any other illegal

drugs with any of your Conrail co-workers?

A. Yes.

Q. The answer is yes?

A. Yes.

Q. On how many occasions?

A. I don’t know.

[216] Q. Did that occur in 1986?

A. Yes.

Q. Was that a fairly frequent occurrence?

MR. SARSFIELD: Objection to leading.

Q. How frequent was the occurrence?

MS. SHEARER: If I might have a moment.

A. Would you repeat the question, please?

30a

Q. How frequently did you use marijuana with your

Conrail co-workers in 1986?

A. I can’t recall any—I don’t know how to answer it

as far as frequency goes, but it was a number of times.

Q. More than ten?

A. Probably.

Q. More than 20?

A. Maybe.

[222] A. .. . Again, I might add I am subject to

blackouts under the influence of drugs and alcohol.

Q. How common is the use of drugs or marijuana

by Conrail employees?

MR. SARSFIELD: Objection.

A. I couldn’t answer that.

Q. What is the reason you couldn’t answer that?

A. Because I am not accountable for everyone else.

Q. Just talking in terms of your knowledge, [223]

based on your knowledge, how frequent is the use of

marijuana or other illegal drugs by Conrail employees?

MR.SARSFIELD: Objection, please.

A. Again, I can only answer for myself, and who-

ever was around me, if they did it, and they were around

me when I was doing it, then we did it, or if they had it.

I was around them, we did it. But I am not sure how

to answer as far as frequency goes. Sometimes it was

infrequent, sometimes more frequent than others.

Q. So it is something you did have occasion to observe

from time to time; is that fair to say?

A. Yes.

Q. Okay. How long have you been subject to black-

outs?

A. I am not sure about that either. I hadn’t even

been aware of it, until I started into recovery, that I was

having blackouts.

3la

APPENDIX D

Excerpt from testimony of Edward Walter Cromwell

before the Grand Jury, in the Circuit Court for Balti-

more County, Maryland, In re Special Investigation, May

1, 1987. :

[103] Q: Were you doing anything at that time be-

sides calling the signals?

A: That’s when I reached in and got my joint out.

Q: The pin joint?

A: Yes.

Q: At what point? Was it after you called those two

signals or before or during?

A: I believe it was right after or maybe even before

[104] the North Point signal.

Q: Before the North Point signal?

A: I’m not exactly sure, but it was right outside of

the yard.

Q: Outside of the yard?

A: As we were leaving Bay.

Q: As you were leaving Bay while you were on track

number one?

Right, yes.

Q: And did you light the joint?

A: Yes, I did.

Q: What did you do with it?

We smoked it.

When you say we, who do you mean?

Rick and I smoked.

Q: And how many hits off of it did you have?

A: I believe three.

Q: And how many did Rick have?

A: Probably about three also.

Q: Now, why did you pull that out? Why did you

do that with Gates?

A: I have smoked with him on one other occasion.

Q: Onatrain?

A: Yes.

32a

Q: When he was the engineer?

[105] <A: Yes.

Q: What did you do with the remainder that was left

of the joint after you each took some hits?

I smoked the roach in a bow! that I had.

And by bowl you mean—

Pipe.

And what did you do after that?

Put the bowl in my bag and started making lunch.

* 7 + +

[115] A: I went back up to the north engine, the 5044,

to see if Rick was okay, dead, or what was going on.

Q: And what did you find when you got up there?

A: He wasn’t there and the portable radio wasn’t

there.

Q: So, what did you do?

A: I got my bowl out of my bag and got back down

off the engine and I hid the bowl somewhere in some-

body’s yard. I’m not sure where. I started walking up

to where the wreck was. I seen a rescue worker and they

asked me if I was involved in the wreck. I said, Yes.

He said, Walk out to the road and get in an ambulance.

* * * *

f125] Q: And when you went to the NTSB (National

Transportation Safety Board] hearing, did you testify

that you had smoked with Gates on the run?

A: No, I told them that we didn’t smoke at all that

POE gE

day.

Q: You denied it?

A: Yes.

Q: And to ycur knowledge did Gates deny that also?

A: Yes.

[130] Q: Had you ever—you had ridden before with

Gates?

A: Yes. From what I know he’s a good engineer,

he knows all of the rules.

33a

APPENDIX F

Excerpt from transcript of Hearing before the Committee

on Commerce, Science and Transportation, United States

Senate, February 25, 1988.

[89] THE CHAIRMAN [Senator Hollings]: ... I

take it on this one occasion that you pointed to in your

own testimony, where you called in and said you were

not ready to go to work, they said come on in anyway

and that you looked okay. Can you elaborate on that?

MR. GATES: Well, it was a clerk that called me,

that is required to order me for work. At that time he

was going to show me refusing duty, which would have

put me under disciplinary measures at work, and also it

would cause him to some hardships.

And so I told him more or less that I would show up

at work if he would call the trainmaster that was on

duty and tell him what condition I told him I was in. I

told him I was drunk.

I told him I would have a friend of mine drive me to

work because I was not capable of driving myself, and

we would put it in his lap and let him decide, with no

intention myself of actually having to run a train that

night.

When I did show up, I stopped briefly and got a coffee

and walked into the back room where the trainmaster’s

office was. My crew was already there with him and

was aware of what to expect from me when I walked in.

I was spilling the [90] coffee all over the place because

I was not walking straight.

And he told me I looked okay and that another mem-

ber of my crew would keep me awake during the trip.

THE CHAIRMAN: What about the attitude of the

employees? That indicates to me that when you do get

in trouble and know you are not in a condition, that you

do you mind stating so and you do have this responsi-

bility foremost in mind.

If you had a vote amongst the employees you have

been with on random testing, would they vote aye or no?

34a

Would they vote and say no, we do not want to have

such a thing, or would they vote and really consider it

good for them as well as the traveling public?

What would be your opinion?

MR. GATES: Well, I know the union’s position on

it. I cannot answer for the other employees. But I know

for myself, I would think, based on that, others would

answer similarly.

As I said before, denial is the hallmark of the disease.

That is the main thing. Nobody wants to get caught.

You will deny and you will lie your way out of it if at

all possible, and you will do anything you can to keep

from being tested positive, or to even take the test in

some instances.

195] SENATOR DANFORTH: And have there been

other cases, other than your own case, when the super-

visor said, well, you are good enough to work? Do you

know other cases when the supervisor had seen somebody

on the job or seen somebody before he goes on the job

and allowed him to proceed with his work?

MR. GATES: My case was the only one where I have

experienced someone actually ordering me, knowing me

and having me tell them I was intoxicated. I have been

in other situations where the person I was working with,

we both confronted a supervisor and we were—well, at

least he was blatantly drunk, anyway, drunk enough to

tell by looking and sniffing or whatever you want to do.

And it was ignored.

[96] SENATOR DANFORTH: It was ignored by the

supervisor?

MR. GATES: Yes, sir.

SENATOR DANFORTH: Do you think that during

the 14 years you have been on the railroad that it has

been a common everyday occurrence that people have

operated trains while they have been impaired by alcohol

or drug use?

MR. GATES: As I said before, I have not worked

there in the past year, but I have no reason to believe

35a

that anything has changed. It had slacked off for the

past few years that I had worked there as far as visi-

bility. That is why I cannot say whether some of the

employees were continuing their practices or not.

But originally when I worked there, when I started

working under Penn Central, it was a common everyday

practice.

* * * *

[99] SENATOR EXON: Either before this tragic ac-

cident or subsequent thereto, have you known of any one

of your personal acquaintances that have turned them-

selves in for voluntary treatment, as the rules and regu-

lations of the [100] Federal authorities allow?

MR. GATES: I have never known anybody to turn

themselves in. I have known a couple of employees that

were caught and more or less forced to go in for treat-

ment, and they are doing very successfully now.

* * * *

[148] SENATOR DANFORTH: Mr. Mann, you do

not object to drug testing except random testing, is that

right?

MR. MANN: That is correct. ... The Brotherhood

of Locomotive Engineers and the United Transportation

Union have agreed to pre-employment, post-accident,

periodic and reasonable cause.

* . .

[147] SENATOR DANFORTH: .. . Did the court

case hold that this crazy Ninth Circuit case, did it not

hold that testing after an accident was unconstitutional?

MR. MANN: It did.

SENATOR DANFORTH: Do you favor testing after

accidents?

f148] MR. MANN: Only if there are protections built

in will the unions favor testing.

SENATOR DANFORTH: You have taken the posi-

tion that you favor testing after accidents.

MR. MANN: Correct, and there is a difference—

* * * &

36a

APPENDIX F

February 23, 1988

FEDERAL RAILROAD ADMINISTRATION

ACCIDENT INVESTIGATION UPDATE

CHESTER, PENNSYLVANIA

JANUARY 29, 1988

AMTRAK

BACKGROUND:

The accident occurred at 12:32 a.m. near Chester,

Pennsylvania, when Amtrak’s No. 66 (Night Owl)

train—which should have been diverted to a clear track——

was permitted to proceed onte a stretch of trackage

occupied by a Maintenance of Way vehicle. The block

tower operator who controlled the signal at the point

where the Amtrak train should have been diverted fled

the premises in mid-shift, immediately after the occur-

rence of the accident. The two locomotive units derailed

and overturned. All 10 cars derailed and remained up-

right. The engineer and 18 passengers were injured.

CASUALTIES AND PROPERTY DAMAGE:

Nineteen people were injured. Property damage is

estimated at $297,150.

POST-ACCIDENT TESTING:

Train Crew and Others: Samples were obtained from

the Amtrak engineer, conductor, four assistant conduc-

tors, the train dispatcher, a signal maintainer shortly af-

ter the accident, and from the block operator on the after-

noon of February 1, 1988. One assistant conductor tested

positive for the marijuana metabolite in the blood ( 27 ng)

and urine (27 ng). Tests on all other crew members were

negative.

Block Operator: The accident occurred at approxi-

mately 12:32 a.m. on January 29, 1988. The block oper-

37a

i st without authorization and accordingly

wae a caellebts for post-accident toxicological testing

required by FRA rules. On the afternoon of February re

1988, three and one-half days after the accident, the bloc

operator met with representatives of the parties to the

accident investigation.

At the conclusion of that interview, the block operator

was asked if he would submit to testing under the Fed-

eral regulations, and he agreed to do so. He was —

taken to a medical facility where specimens were collecte

shortly after 4:00 p.m. The samples were sent to “er

Center for Human Toxicology for testing under the FR

rule.

The block operator tested positive for the following

compounds: for the marijuana metabolite in the blood

(8 ng/ml) and urine (89 ng/ml); for the cocaine meta-

bolite in the urine {S1 ng/ml); and for methampheta-

mine (74 ng/ml) and amphetamine (48 ng/ml) (pos-

sibly present as a methabolite of methamphetamine) in

the urine. Other tests for drugs and alcohol were nega-

tive.

In view of the fact that the block operator had absented

himself following the accident, FRA instructed the Center

to test his specimens down to the sensitivity of the par-

ticular tests to determine the smallest detectable amount

consistent with the reliability of the test procedures and

equipment. Since drugs and their metabolites are elimi-

nated from the body over a period of time that differs by

type of drug, frequency of use, dosage, and other factors,

testing in the range below the normal “administrative

detection limit” (or usual cut-off levels) extends the pe-

riod during which the drug is detectable.

Attached is an excerpt from FRA’s Field Manual that

indicates the “general parameters” for drug detection

over time. This table assumes normal screening and con-

firmation cut-offs higher than those employed in the

subject tests.

38a

William E. Loftus

Angela Sullivan

Federal Railroad Administration

(202) 366-0881

February 23, 1988

RESULTS OF TOXICOLOGICAL ANALYSIS—

BLOCK OPERATOR

Chester, Pa.; Amtrak; January 29, 1988

(In Nanograms (ng) (per Mililiter)

Center for Human Toxicology

(FRA)

Drug ne ee

Marijuana

metabolite Sng. S89ng (20ng) (20 ng)

Cocaine

metabolite neg. Sing ((10ng) (150 ng)

Methamphetamine neg. T74ng (20 ng) (100 ng)

Amphetamine * neg. 48ng # £(20ng) (100 ng)

1,2 Because the tests were not performed until the fourth day

after the accident, FRA requested its laboratory to test the speci-

mens down to the sensitivity of the assays (the lowest level at which

the compound can be reliably identified). The first number in poren-

thesis is the sensitivity of the test; the second is the administrative

reporting cut-off (on confirmation) for normal reporting purposes

when specimens are collected within a reasonable time after the ac-

cident. The cocaine metadolite and methamphetamine /amphetamine

results would have been reported as negative under normal report-

ing practices.

3 Possibly present as a metabolite of methamphetamine.

ie Det wt te ee ite eh. i ei 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.