Amicus Curiae Brief — City of Mesa v. Petersen

(1) es ee US.

JUL 1 - 2004

No. 03-1599 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

CITY OF MESA, :

Petitioner,

V.

CRAIG W. PETERSEN,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Arizona

BRIEF OF THE CITY OF PHOENIX, THE CITY

OF KINGMAN, THE CITY OF PEORIA, THE CITY

OF PRESCOTT, THE CITY OF SOMERTON, THE

CITY OF YUMA, AND THE LEAGUE OF ARIZONA

CITIES AND TOWNS AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

PETER VAN HAREN

City Attorney

SANDRA HUNTER *

Assistant City Attorney

CITY OF PHOENIX

200 W. Washington Street, Suite 1300

Phoenix, Arizona 85003-1611

(602) 262-6761

* Counsel of Record Counsel for Amici Curiae

[Additional Counsel Listed on Inside Cover]

NR: RL NLL MEET LONNIE A REO T TILE EST MILT AS NN NR RR TRI HEINE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

ROBERT A. TAYLOR

City Attorney

CITY OF KINGMAN

310 N. Fourth Street

Kingman, Arizona 86401-0001

(928) 753-8091

STEPHEN M. KEMP

City Attorney

CITY OF PEORIA

8401 W. Monroe Street

Peoria, AZ 85345

(623) 773-7330

JOHN R. MOFFITT

City Attorney

CITY OF PRESCOTT

201 S. Cortez

PO Box 2059

Prescott, Arizona 86302-2059

(928) 777-1274

GERALD W. HUNT

City Attorney

CITY OF SOMERTON

330 W. 24th Street

Yuma, Arizona 85364

(928) 783-0101

STEVEN W. MOORE

City Attorney

CITY OF YUMA

One City Plaza

PO Box 13014

Yuma, Arizona 85366-3014

(928)373-5050

DAVID R. MERKEL

General Counsel

LEAGUE OF ARIZONA

CITIES AND TOWNS

1333 East Ranch Road

Tempe, Arizona 85284

(480) 839-1372

QUESTION PRESENTED

Whether the Arizona Supreme Court correctly held, in

conflict with the principles of this Court and decisions of

several lower courts, that the Fourth Amendment to the

United States Constitution prohibits random, suspicionless

drug testing of firefighters absent evidence of prior drug

abuse within the fire department?

(1)

TABLE OF CONTENTS

QUESTION PRESENTED. ......0......cscccesssssesesssssssceseeees i

TABLE OF AUTHORITIES ...........ccccccscsssscsssscsscscoseeees vi

INTEREST OF AMICI CURIAE wo.ceecccsccscscsssssssesseseseece. 2

SUMMARY OF ARGUMENT .........cccccccscscssssscescoseseess 3

I itei resin cistcsipsysnesisciccpinsceiveveserseeesadsoeoseeeass 3

I. THE FOURTH AMENDMENT’S SPECIAL

NEEDS BALANCING TEST, AS MU-

TATED BY THE ARIZONA SUPREME

COURT, REQUIRES A QUANTUM OF

EVIDENCE OF PRIOR DRUG ABUSE AND

CREATES A VAGUE STANDARD THAT

IS IMPOSSIBLE TO IMPLEMENT................. 4

A. The Arizona Supreme Court Decision

Makes It Impossible to Know What

Evidence Is Necessary to Justify Random

ERE SREETRe 5

B. The Arizona Supreme Court Is as Unclear

in Stating Who May Use Evidence of Prior

Drug Problems as It Is in Stating What

Evidence Is Sufficient.............cccccccssccceeceees 6

C. While the Arizona Supreme Court Provides

Little Clarity of What Evidence Justifies

Random Testing, It Provides No Explan-

ation of What Evidence Justifies the

Continuation of Random Drug Testing ....... 7

(iii)

If.

iV

TABLE OF CONTENTS—Continued

THE ARIZONA SUPREME COURT'S

FLAWED FOURTH AMENDMENT INTER-

PRETA «ION IS IMPOSSIBLE TO RECON-

CILE WITH DECISIONS NATIONWIDE

AND FEDERAL REGULATIONS THAT

PERMIT RANDOM DRUG TESTING OF

OTHER, EQUALLY OR LESS SAFETY

SENSITIVE OCCUPATIONS .......ccscccossssscesoees

A.

If the Arizona Supreme Court’s Mis-

aligned Balancing Test Precludes the

Random Testing of Firefighters, Then It

Also Precludes the Random Testing of

Law Enforcement Occupations That Pos-

sess Equivalent Safety Sensitive Traits .......

The Broad Brush of the Arizona Supreme

Court’s Interpretation Leads to Inevitable

Conflict With Nationwide Court Decisions

Approving of Random Drug Testing in

Occupations That Are Far Less Safety

Sensitive Than Firefighting ....................008

The Arizona Supreme Court Decision

Conflicts With Federal Regulations Man-

dating Random Drug Testing in Areas

Such as Commercial Driving..................0

Page

12

Vv

TABLE OF CONTENTS—Continued

| Page

III. CONTRARY TO THE ARIZONA SUPREME

COURT’S FINDING, RANDOM TESTING

IS LESS INVASIVE AND MORE EF-

FECTIVE THAN OTHER FORMS OF TEST-

ING IN DETECTING AND DETERRING

DRUG ABUSE AMONG FIREFIGHTERS

CHARGED WITH THE PROTECTION OF

PEE PO: sivistvienccntcascnsaumetiion mat 14

A. Random Testing Is Hardly as Dangerously

and Substantially Invasive as the Arizona

Supreme Court Believes .........ccccccccccsseseoees 16

B. Random Drug Testing of Firefighters Has

Proven More Effective in Detecting and

Deterring Drug Abuse Than Other Forms

PS sc ee 17

RA ca OE siisoeslandadasaaanauaeeeunauseaaeieeeane 20

vi

TABLE OF AUTHORITIES

CASES Page

Aubrey v. School Board of Lafayette Parish, 148

Pik SO Le tle SUED ccictansinstnsenmnivaanntt 12

Board of Education of Independent School

District No. 92 of Pottawatomie County v.

Barts, S56 Ui. Ge Cee itsregeivtninennin yt 6

Boesche v. Raleigh-Durham Airport Authority,

432 S.E.2d 137 (N.C. App. 1993) ......cccscsscsesees 12

Bluestein v. Skinner, 908 F.2d 451 (9th Cir.

TPE sveinestecimerniesiininhinaenmnaaaaiaias 16, 20

Chandler, et. al. v. Miller, et. ai., 520 U.S. 305

CFT tiisiincninncayinncnvieresecssingiaaedetdaanaaaaainnad 4

Dimeo v. Griffin, 943 F.2d 679 (7th Cir.1991)...... 12

Guiney v. Roache, 873 F.2d 1557 (ist Cir. 1989)... 9

Hansen v. California Dept. of Corrections, 920

F.Supp. 1480 (N.D. Cal. 1996)... eeeeeeeeees 9

Harmon v. Thornburgh, 878 F.2d. 484 (D.C. Cir.

PEP sinhisssicieentieestncrsnaesigatnaaian 10, 16

National Treasury Employees Union, et. al. v.

Cheney, 884 F.2d 603 (D.C. Cir. 1989)............. 9

National Treasury Employees Union v. Von

eee: GF UE, Ga re ickastieerimscinsin passim

Policemen’s Benevolent Association of New

Jersey, Local 318 v. Township of Washington

Gloucesier County, 850 F.2d 133 (3rd Cir.

SPUN sissies ieiialeaciedielaaiaaiias eal ainiaaiaeiaaianaddiian 9

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

PIT sseinassselobicuniegedstesietuesncunceiasiuacemelaaiaania 12

Skinner v. Railway Labor Executives’ Ass’n, 489

SF. Ee COPE cctneceuiceonsnmeneind 17, 18, 20

Vernonia School District 47 J v. Acton, 515 U.S.

RP Ee vinvirtissisctaocceeeeasnabeaenaiin 19

Vil

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL AND STATUTORY Page

PROVISION

United States Constitution, Fourth Amendment... passim

er Pian BE ITT epsnicaicdbsiinesnssivaninctedtiasamindaniadece 13

OTHER AUTHORITIES

50 Fed. Reg. 31526 (1985)..........cccccscscececscoresssessees 19

SP ths SOD CAD crescesinscneosnsessvsesseyresevemueniets 13

IN THE

Supreme Court of the Anited States

No. 03-1599

CITY OF MESA,

Petitioner, ~

V.

CRAIG W. PETERSEN,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Arizona

BRIEF OF THE CITY OF PHOENIX, THE CITY

OF KINGMAN, THE CITY OF PEORIA, THE CITY

OF PRESCOTT, THE CITY OF SOMERTON, THE

CITY OF YUMA, AND THE LEAGUE OF ARIZONA

CITIES AND TOWNS AS AMICI CURIAE IN

SUPPORT OF THE PETITIONER

The Cities of Phoenix, Kingman, Peoria, Prescott,

Somerton, and Yuma, as political subdivisions of the state of

Arizona, through their city attorneys, file this amici curiae

brief in accordance with Rule 37.4 of the Court. The

aforementioned cities as well as the League of Arizona Cities

and Towns, upon written consent of both parties, also file this

brief in accordance with Rule 37.2(a) of the Court.’

' A letter of consent to the filing of this brief, signed by both parties,

accompanies this brief. Pursuant to this Court’s Rule 37.6, the amici

represent that no part of this brief was authored by counsel for either

party, and that no person nor entity other than the amici made a monetary

contribution towards the submission of this brief.

takes aaa eae ain |

2

INTEREST OF THE AMICI CURIAE

The combined citizen population of the cities of Phoe-

nix, Kingman, Peoria, Prescott, Somerton, and Yuma is

1,401,561, and the combined number of fire fighting employ-

ees is 1,749.2 The municipalities represented all employ

firefighters to serve and protect public safety and welfare. To

hire and maintain an optimum firefighting force, each munic-

ipality utilizes some form of employee drug testing program,

which may include a random drug testing component.

The Arizona Supreme Court decision will have an enor-

mous impact upon the drug testing procedures in all of the

municipalities joining in this brief. The decision dramatically

restricts municipalities’ ability to ensure the fitness of fire-

fighters in their central role as protectors of the public

welfare. It places the public at great risk of harm in the name

of shielding employees against minimally intrusive random

drug tests. The decision, moreover, affects not only the drug

testing of firefighters, but also the random testing of all

municipal employees.

The cities submit this brief to illustrate the impact of the

Arizona Supreme Court decision on municipal employers and

firefighters, and to argue that certiorari review is needed to

correct the erroneous interpretation of the United States

Fourth Amendment as applied to mumicipalities and fire-

fighters, to clarify the standard necessary to justify randomly

testing firefighters, and to prevent that standard from being

> The League of Arizona Cities and’ Towns represents the interests of

eighty-eight cities and towns in Arizona.

> The following cities joining this brief ceased random drug testing of

firefighters because of the Arizona Supreme Court’s decision: Kingman,

Phoenix, Somerton, and Yuma. All cities joining in this brief currently

use random drug testing for some of their employees (police, commercial

drivers, security guards, etc.) and have expressed interest in using random

drug tests on firefighters.

3

applied more broadly to any municipal occupation subject to

random drug testing.

SUMMARY OF ARGUMENT

The Arizona Supreme Court decision provides a vague

standard of what evidence is necessary to justify random drug

testing of firefighters under the Fourth Amendment of the

United States. Despite clear direction by this Court to the

contrary, the Arizona Supreme Court has declared evidence

of prior drug use a mandatory element that must exist in each

individual municipality before random drug testing may

stand. At the same time, the decision provides little guidance

as to the threshold level of evidence needed to justify the

implementation and maintenance of random tests.

The Arizona Supreme Court’s Fourth Amendment interpre-

tation is not limited to the testing of firefighters. Under

its new special needs balancing scheme, any municipal

employee in any occupation could successfully challenge

random drug testing where there is no evidence of prior drug

abuse in his or her field. Moreover, the broad application

of this new standard will prevent employers from carrying

out the federally mandated random drug testing of commer-

cial drivers’ license holders in the absence of evidence of

drug abuse. :

To ensure firefighters’ fitness for duty, municipalities

nationwide have instituted drug testing procedures at various

Stages in the employment process. In Arizona, random drug

testing of firefighters has proven effective in the detection

and deterrence of drug use. Random drug testing is not only

constitutional, but in this occupation is a necessary means

to protect our citizens and to maintain confidence in fire-

fighter integrity.

ARGUMENT

The Arizona Supreme Court decision runs afoul of the

special needs balancing test adopted and repeatedly clarified

by this Court. The Arizona Supreme Court attempted to apply

4

this Court’s test to determine the reasonableness of the City

of Mesa’s (Mesa) random drug testing of its firefighters and

incorrectly held “that the Program’s random component falls

outside the ‘closely guarded category of constitutionally

permissible suspicionless searches.’” (Petitioner's Appendix

(Pet. App.) 16a-17a, quoting Chandler v. Miller, 520 U.S.

305 (1997))

I. THE FOURTH AMENDMENT’S'’ SPECIAL

NEEDS BALANCING TEST, AS MUTATED BY

THE ARIZONA SUPREME COURT, REQUIRES

A QUANSUM OF EVIDENCE OF PRIOR DRUG

ABUSE AND CREATES A VAGUE STANDARD

THAT IS IMPOSSIBLE TO IMPLEMENT

As this Court noted, “[w]hen such ‘special needs’ . . . are

alleged in justification of a Fourth Amendment intrusion,

courts must undertake a context-specific inquiry, examining

closely the competing private and public interests advanced

by the parties.” Chandler, 520 at 309. A proper context-

specific inquiry in this case would include an analysis of

Mesa’s public interest in the safety of its citizens and of the

private interests of firefighters as government employees. By

focusing on evidence of prior drug use, however, and

declaring that “[t]he absence of evidence of drug use...

provides no basis for us to conclude that random, suspi-

cionless testing is calibrated to respond to any defined risk,”

(Pet. App. 8a) the Arizona Supreme Court has transformed

the inquiry from context-specific to content driven.

This Court has repeatedly stated that evidence of prior drug

use is hardly a necessary element in the balancing test,

although it may shore up justification for testing. /d. at 319.

While the Arizona Supreme Court acknowledged this Court’s

direction, (Pet. App. 8a-9a), it nonetheless chose to raise the

existence of prior drug use from a possible factor to a

mandatory prerequisite in the special needs balancing test,

concluding that “the City’s generalized and unsubstantiated

5

interest . . . is insufficient to overcome even the lessened pri-

vacy interests of the firefighters in this case.” (Pet. App. 16a)

In so holding, the Arizona Supreme Court has run into

precisely the danger that this Court envisioned.

This Court has addressed the impossibility of “articu-

lating] a threshold level of drug use that would suffice to

justify a drug testing program” and has “refuse[d] to fashion

what would in effect be a constitutioi.al quantum of drug use

necessary to show a ‘drug problem.” Board of Education of

Independent School District No. 92 of Pottawatomie County

v. Earls, 536 U.S. 822, 836 (2002).

By making content evidence of drug abuse necessary, the

Arizona Supreme Court has forced the articulation of a

threshold level of prior drug abuse. Yet as this Court pre-

dicted, having demanded evidence of drug abuse, the Arizona

Supreme Court was then unable to clearly articulate what

quantum of drug use would suffice.

A. The Arizona Supreme Court Decision Makes It

Impossible to Know What Evidence Is Neces-

sary to Justify Random Drug Testing

The Arizona Supreme Court bemoans the absence of

“evidence of even a single instance of drug use among the

firefighters” nor “even an allegation or rumor that the City’s

firefighters used or abused drugs or alcohol.” (Pet. App. 8a)

Does this therefore suggest that a single instance of drug use,

or the mere allegation or rumor of a single instance of drug

use would satisfy the threshold level of evidence necessary to

justify random drug testing?

Beginning in 1999, Phoenix instituted random drug testing

in direct response to the drug related suicides of several

firefighters. These deaths occurred despite the existence of

other, non-random drug testing procedures such as reasonable

Suspicion testing. The Arizona Supreme Court’s decision

provides little guidance as to whether this would be sufficient

6

evidence of drug use within the Phoenix Fire Department to

justify adding a random drug testing program.

in finding Mesa’s special needs interest “unsubstantiated,”

the Arizona Supreme Court also points to the lack of evidence

to “suggest that firefighters asked for or consented to the

testing policy.” (Pet. App. 8a) The genesis of Phoenix’s ran-

dom drug testing program was via an agreement between the

United Phoenix Firefighters Association, Local 493 and the

Phoenix «ire Department. The opinion below suggests this

would be evidence supporting a special need, but does not

reveal whether this would be constitutionally sufficient

evidence.

B. The Arizona Supreme Court Is as Unclear in

Stating Who May Use Evidence of Prior Drug

Use as It Is in Stating What Evidence Is

Sufficient

In requiring a quantum of “accidents, fatalities, injuries, or

property damage that can be attributed to drug or alcohol use

by the City’s firefighters,” (emphasis added) (Pet. App. 8a),

the court below indicates that each individual city must

present a history specific to its individual employees. Under

the Arizona Supreme Court’s analysis, therefore, if even one

drug related death substantiated the need for random testing

in Phoenix, neighboring Mesa would nonetheless be pre

cluded from using that same incident to justify its program.

As inconceivable as it seems, the Arizona Supreme Court

would demand Mesa wait until *: too had a drug related

suicide (or other drug related tragedy) before it could institute

the same random drug testing program as Phoenix.’ Similar

* In fact, Mesa’s random drug testing policy for firefighters was taken

from Phoenix, when a Phoenix Assistant Fire Chief transferred to Mesa.

This partially explains Mesa’s inability to cite its own history of drug-use

as justification for its policy.

7

reasoning was rejected by this Court in the context of airport

passenger screening, stating “we would not suppose that, if

the validity of these searches be conceded, the Government

would be precluded from conducting them absent a demon-

stration of danger as to any particular airport or airline.”

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

656, 675 (1989).

Moreover, using a “city” as the proper boundary within

which drug use must exist before random testing is permitted

is an arbitrary selection. If drug use is occurring in only one

of six fire stations in a given city, perhaps random drug

testing would only be justified in that station and not the

entire city. The ensuing difficulty, therefore, caused by the

fact specific, content driven inquiry of the Arizona Supreme

Court’s version of the special needs balancing test, is in

defining the relevant employment sphere: state by state, city

by city, district by district, station by station. In Earls, this

Court stated “it would make little sense to require a school

district to wait for a substantial portion of its students to begin

using drugs before it was allowed to institute a drug testing

program” and instead found it sufficient to note the existence

of a student drug problem nationwide. Earls, 536 U.S. at 836.

C. While the Arizona Supreme Court Provides

Little Clarity of What Evidence Justifies

Random Testing, It Provides No Explanation of

What Evidence Justifies the Continuation of

Random Drug Testing

This Court has noted “When the Government’s interest lies

in deterring highly hazardous conduct, a low incidence of

such conduct, far from impugning the validity of the scheme

for implementing this interest, is more logically viewed as a

hallmark of success.” Von Raab, 489 U.S. at 675. Unfortu-

nately, the Arizona Supreme Court’s analysis comes to an

opposite conclusion: greater drug abuse presents a stronger

argument for random testing and lesser (or no) drug abuse

8

presents a weaker, and indeed fatal, argument for random

drug testing.

If, as the Arizona Supreme Court has stated, evidence of

drug use is now a central factor in the special needs balancing

test of the Fourth Amendment, even municipalities that had

shown a threshold level of drug problems could be at risk of

losing their right to randomly test should drug use in the

target occupation cease.

The Phoenix Fire Department’s random drug testing pro-

gram is relatively new. From the program’s start in 1999

through 2003, positive test results from random drug testing

have fallen 70%. Can the argument be made that Phoenix

now lacks a quantum of drug use within its firefighting force

necessary to sustain the constitutional validity of continuing

random testing? Is there some period of time where, if posi-

tive tests cease altogether, justification for random testing

also ceases?° Ironically, under the Arizona Supreme Court’s

misaligned balancing test, the efficacy of random drug tests in

deterring drug use among Phoenix firefighters could become

its own undoing.

Il. THE ARIZONA SUPREME COURT’S FLAWED

FOURTH AMENDMENT INTERPRETATION IS

IMPOSSIBLE TO RECONCILE WITH DECI-

SIONS NATIONWIDE AND FEDERAL REGU-

LATIONS THAT PERMIT RANDOM DRUG

TESTING OF OTHER, EQUALLY OR LESS

SAFETY SENSITIVE OCCUPATIONS

The Arizona Supreme Court’s Fourth Amendment inter-

pretation is not limited to the random testing of firefight-

ers: using its analysis, all government, municipal, and public

* This scenario is entirely possible. Consider the Phoenix Police De-

partment. Phoenix instituted the random drug testing of its police force in

1991. In the last five years, Phoenix police officers were subjected to

6,977 random drug tests, producing no positive tests.

9

random drug testing programs are at risk where there is no

evidence of prior drug use within the targeted occupation.

A. If the Arizona Supreme Court’s Misaligned

Balancing Test Precludes the Random Testing

of Firefighters, Then It also Precludes the

Random Testing of Law Enforcement Occupa-

tions That Possess Equivalent Safety Sensitive

Traits

If being positioned to cause even a single incident of grave

public harm, carrying firearms, investigating crimes, handling

drugs, or needing to be mentally and physically fit are what

makes an occupation safety sensitive enough to provide gov-

ernment with compelling interests sufficient to overcome the

privacy interests of its employees, then firefighters, who share

all of these traits at least some of the time, must also be

sufficiently safety sensitive to permit random drug testing.

Law enforcement responsibility is a common factor shared

by customs agents, correctional guards, and police officers;

all occupations that the courts have held sufficiently safety

sensitive to establish a special need to drug test.° Firefighters

likewise take on some law enforcement duties in the perform-

ance of their jobs. As the first responders to overdose calls,

firefighters are charged with searching for drugs and bringing

them to hospitals to identify what an individual attempting

suicide may have ingested.’ Firefighters are also charged

° See, e.g., Von Raab, 489 U.S. 656 (1989) (customs agents); Hansen v.

California Dept. of Corrections, 920 F.Supp. 1480 (N.D. Cal. 1996)

(correctional guards); Guiney v. Roache, 873 F.2d 1557 (Ist Cir. 1989)

(police); Policemen’s Benevolent Association of New Jersey, Local 318 v.

Township of Washington, 850 F.2d 133 (3rd Cir. 1988) (police); National

Treasury Employees Union, et al. v. Cheney, 884 F.2d 603 (D.C. Cir.

1989) (police).

’In a one year period ending April 30, 2004, Phoenix firefighters re-

sponded to 3,316 calls regarding reported overdoses.

ee

10

| with assisting in confiscating illegal drugs involved in the

| commission of crimes and turning them over to the police.

| Some firefighters, moreover, are more law enforcement

| officers than fighters of fire: Phoenix arson investigators are

| firearms carrying, sworn officers, who spend the majority of

| their time investigating fire related crimes.

Unlike other employees whose job functions occur mostly

in an office setting, and whose decisions and actions are

insulated from the public, officers’ job functions occur pri-

marily in direct contact with the public. In this respect,

officers and firefighters are equally matched. As with other

highly sensitive positions, firefighters so directly serve public

safety that a drug impaired member poses an immediate

threat to the lives of the citizenry, such “that a single slip-up

. may have irremediable consequences; the employee

himself will have no chance to recognize and rectify his

mistake, nor will other government personnel have an

opportunity to intervene before the harm occurs.” Harmon v.

Thornburgh, 878 F.2d. 484, 491 (D.C. Cir. 1989).

In an emergency, there is neither time nor opportunity to

second guess a firefighter’s or officer’s choices and abilities;

~ we instead trust that he arrives on scene with complete mental

and physical fortitude to see the situation through to its best

possible conclusion. To give us this trust in their abilities,

employees in both occupations should “expect intrusive in-

quiries into their physical fitness for those special positions.”

Von Raab, 489 US. at 672.

In Von Raab, this Court recognized that government has a

compelling interest not only in ensuring the physical fitness

of customs agents, but also in ensuring their “unimpeachable

integrity and judgment.” /d. at 670. Customs employees “may

be tempted not only by bribes from the traffickers with whom

they deal, but also by their own access to vast sources of )

valuable contraband seized and controlled by the Service.”

Id. at 669.

——

11

Like customs workers, firefighters’ special position and

expertise makes them vulnerable to bribes, blackmail, and

other malfeasance. Today’s firefighters have intimate knowl-

edge of drugs, regularly using this expertise during the course

of their duties to identify harmful drug use and administer

| helpful drug treatment. Firefighters also have ready access to

| a laundry list of drugs, stored at the fire station for use by

firefighters and other emergency medical personnel.® If

firefighters, because of their own drug use, are “unsympa-

thetic to their mission” of safeguarding the public, then the

municipalities face the risk of irreparable harm to their

citizenry.” Jd. at 670.

Given that firefighters share many of the traits that make

customs agents, corrections officers, and police officers

safety sensitive enough to provide government with a com-

pelling interest in drug testing, it is clear that if the Arizona

Supreme Court’s decision is permitted to stand, all govern-

ment employers in Arizona now face the loss of the right to

randomly test these other occupations absent evidence of drug

problems in their individual arenas.

Drugs accessible at a Phoenix fire station include: Adenosine,

Albuterol, Aspirin, Atropine Sulfate, Bretyliam Tosulate, Calcium

Chloride, Dextrose, Diazepam, Diphenhydramine HCL, Dopamine HCL,

Epinephrine, Furosemide, Glucagon, Lidocaine IV, Methylprednisolone,

Morphine Sulfate, Nalozone, Neosynephrine, Nitrostat Tablets, Oxytocin,

Sodium Bicarbonate, Thiamine HCL, Verapamil.

9 An example of the cloud that can envelope a drug abusing firefighter,

drawing into question his integrity and judgment comes from recent

newspaper accounts of arson for hire at the hands of several area fire-

fighters, two of whom tested positive during random drug tests.

Regardless of the outcome of any criminal charges, the integrity of those

firefighters and public confidence in their cities’ fire departments has been

damaged by the drug connection.

12

B. The Broad Brush of the Arizona Supreme

Court’s Interpretation Leads to Inevitable

Conflict With Nationwide Court Decisions

Approving of Random Drug Testing in Occu-

pations That Are Far Less Safety Sensitive

Than Firefighting

Horse racing personnel, school custodians, and airport air

cooling and heating maintenance mechanics have all been

considered by courts to be sufficiently safety-sensitive to

merit random testing.'° This is because the courts properly

weighed the invasiveness of drug testing against the interests

of public safety, using the presence or absence of prior drug

abuse as merely a factor to place on either side of the scale.

Using the Arizona Supreme Court’s balancing test, however,

these less safety-sensitive occupations would surely fail

to justify random testing in the absence of an occupational

drug history.

School custodians in Arizona would not face the same

random tests permitted of custodians in Louisiana. The Fifth

Circuit in Aubrey approved random drug testing, declaring

that, even without evidence of a custodial drug abuse prob-

lem, school custodians were “considered safety sensitive

because of the handling of potentially dangerous machinery

and hazardous substances in an environment including a large

number of children ranging in age from three to eleven.”

Aubrey, 148 F.3d at 564.

Firefighters engage in all of those custodial activities and

more. Firefighters aren’t simply present near children, but

lay hands on them in the performance of a rescue or

10 Dimeo v. Griffin, 943 F.2d 679 (7th Cir.1991) (horse racing jockeys),

Shoemaker v. Handel, 795 F.2d 1136 (3rd Cir. 1986) (horse racing

jockeys and personnel); Aubrey v. School Board of Lafayette Parish, 148

F.3d 559 (Sth Cir. 1998) (school custodians); Boesche v. Raleigh-Durham

Airport Authority, 432 S.E.2d 137 (App. 1993) (air cooling and heating

maintenance mechanics). -

13

emergency medical service. Beyond ensuring clean school

environments, we entrust firefighters to ensure safe home

environments for children, going so far as to permit fire-

fighters to forcibly enter homes without consent. The

hazardous substances custodians work with in the school

setting are multiplied in the duties of firefighters, who

respond to hazardous material spills, secure possible anthrax

mail, or investigate suspicious and potentially lethal odors.

Finally, the dangerous machinery custodians control are

surely more benign compared to the multi-ton ladder trucks,

fire engines, and rescue vehicles driven at break-neck speeds,

with legal authority to disobey traffic laws, through city

streets. If the school board of Lafayette Parish needed no

evidence of custodial drug use, but was permitted random

drug testing largely on the safety-sensitive nature of a school

custodian’s duties, then one is left to wonder why the clearly

more safety sensitive occupation of firefighter merits a

requirement of evidence of prior firefighter drug use.

C. The Arizona Supreme Court Decision Conflicts

With Federal Regulations Mandating Random

Drug Testing in Areas Such as Commercial

Driving Occupations

In Arizona, municipalities use random drug tests on their

commercial vehicle drivers. Random tests are utilized, not

because of any evidence of drug use in given municipalities,

but because random drug testing of commercial driver’s

license (CDL) holders is federally mandated.''! CDL holders

are subject to random drug testing because of the potential for

great damage at the hands of drug impaired drivers of large

commercial vehicles. Noteworthy is the lack of any federal

The Omnibus Transportation Employee Testing Act mandated

regulations for drug testing transportation employees. 49 U.S.C. § 5331.

Following this mandate, the Federal Motor Carrier Safety Administration

dictated the random drug testing of all commercial driver’s license (CDL)

holders in each state or municipality. 49 C.F.R. 383.3 (2003).

14

regulation requiring evidence of drug history as a prerequisite

to enforcing the federal directives.

Arizona’s employers are now caught between obeying the

Arizona Supreme Court’s interpretation of the Fourth

Amendment and following federally mandated random drug

testing requirements for CDL holders. A City of Peoria bus

driver could attack that city’s random drug testing of mass

transportation employees, citing the lack of evidence of drug

use within the City of Peoria’s bus driving population. Under

the Arizona Supreme Court’s Fourth Amendment special

needs balancing test, the lack of evidence would certainly tip

the scales against the right to test those employees. 7

Ill. CONTRARY TO THE ARIZONA SUPREME

COURT’S FINDING, RANDOM TESTING IS

LESS INVASIVE AND MORE EFFECTIVE

THAN OTHER FORMS OF TESTING IN

DETECTING AND DETERRING DRUG ABUSE

AMONG FIREFIGHTERS CHARGED WITH

THE PROTECTION OF THE PUBLIC

Across the nation, the role of firefighters has expanded

exponentially. Firefighters are paramedics and rescue

workers, trained to thrive under pressure, permitted to invade

our homes, and trusted to administer life saving care. They

respond to calls involving criminal acts, often taking on law

enforcement responsibilities. Firefighters are also part of this

nation’s line of defense against terrorism, as evidenced by

their central role in responding to 9/11, the World Trade

Center bombing, and the bombing of the Oklahoma Federal

2 If the random drug testing of CDL holders was found to be protected

by the Fourth Amendment, the Arizona Supreme Court’s decision would

produce an even more nonsensical result: without needing a history of

drug abuse, the City of Yuma can test drivers of 21,300 Ib. street

sweepers, but cannot test drivers of 60,360 Ib. ladder trucks or 39,800 Ib.

fire engines.

15

Building. Once existing solely to combat fires, a firefighte

now part fighter of fire, doctor, officer, and soldier.'?

Entwined with the expanding role of firefighter is

expanding connection to drugs. As this Court noted, “cr

abuse is one of the most serious problems confronting «

society today. There is little reason to believe that Americ

workplaces are immune from this pervasive social problen

Von Raab, 489 U.S. at 674. In firefighting, the line betwe

outside society and inside workplace is obliterated: a fh

fighter’s job takes him into America’s homes and a ff

fighter’s home (the fire station) is also his workplace.

Both living at a fire station and while on call im ¢

community, firefighters have constant exposure and access

drugs of all kind. They face the relentless temptation

taking drugs as an easy way to deal with the highly tax»

physical and mental demands of firefighting: steroids to ke

in shape, stimulants to deal with long hours and non-standa

work schedules (such as multiple day, extended hour shu

battling forest fires), depressants to take the edge c

adrenaline highs from firefighting, and alcohol to dull «

stress of life saving responsibilities in life endanger

circumstances.

As firefighters shoulder ever increasing responsibslity

the public, so their municipal employers bear ever increasi:

responsibility to ensure firefighters’ fitness for duty. In «

face of firefighters’ constant exposure to drugs, it natural

follows that employers have instituted measures to constant

test for drug abuse.

‘In fact, firefighters spend far more time on emergemy mee

service (EMS) calls than on fire calls. In Phoenix, erghty percent of cal

for service are for EMS, with the remaining twenty percent epht beree

calls for fire and everything else, from hazardous chemes! tore

rescuing cats in trees.

16

A. Random Testing Is Hardly as Dangerously and

Substantially Invasive as the Arizona Supreme

Court Believes

Although the Arizona Supreme Court found that “[Mesa]

has designed its Program to reduce its intrusion upon the

firefighters’ privacy interests,” (Pet. App. 12a-13a), it none-

theless found the very nature of random tests, in “preclud[ing]

any advance notification” to be highly intrusive, creating

inherent “fear and surprise.” (Pet. App. 15a) This Court has

recognized, however, that with the proper safeguards, the

randomness of a drug test causes little more fear and surprise

than the prospect of taking a scheduled drug test. See, e.g.,

Earls, 536 U.S. at 822.

Courts have found that the “randomness” of a test merely

adds “some weight to the ‘invasion of privacy’ side of the

Fourth Amendment balance,” Bluestein v. Skinner, 908 F.2d

451, 456-6 (9th Cir. 1990), and is simply “a relevant consid-

eration [that] in a particularly close case . . . would tip the

scales.” Harmon, 878 F.2d at 489. What negligible fear and

surprise a random test might cause a normal employee,

moreover, could hardly be a concern to firefighters who face

far greater terror and uncertain fate every time the siren,

randomly and without notice, rings and they board an engine

to race into unknown calamity and peril.

The Arizona Supreme Court’s great concern, that random

testing subjects firefighters to “continuous government scru-

tiny,” and “raises the specter of the ‘unsettling show of

authority,” is also overblown. (Pet. App. 15a-16a) A fire-

fighting applicant faces the future with the expectation that

there will be testing for pre-employment qualification, during

probation, upon accident or incident, and upon reasonable

suspicion. Faced with the routine plethora of tests, one

additional type of drug test should add no more or less

expectation, nor should it add any additional burden to the

normal duties of a firefighter. As a condition of their

a a a ie

17

employment, firefighters consent to this regimen of testing.

Having consented, it cannot be seriously maintained that such

tests violate the Fourth Amendment.

While this Court has repeatedly held that “[t]he reason-

ableness of any particular government activity does not

necessarily or invariably turn on the existence of alternative

‘less intrusive’ means,” Skinner v. Railway Labor Executives’

Ass'n, 489 U.S. 602, 629 (1989), the Arizona Supreme Court

still counted against Mesa its inability to show “that these

[non-random] testing alternatives fail to deter and detect drug

use among the City’s firefighters.” (Pet. App. 8a)

B. Random Drug Testing of Firefighters Has

Proven More Effective in Detecting and Deter-

ring Drug Abuse Than Other Forms of Testing

Like Mesa, Phoenix employs drug testing of firefighters as

a prerequisite to employment, during the probationary first

year, upon work-related accidents, upon reasonable suspicion,

and on a random basis. All of these tests are reactive, trig-

gered after the occurrence of an event. If the non-random

components of drug testing adequately detect and deter drug

abuse, then random drug testing should prove redundant,

finding no additional positive tests. Phoenix’s multi-prong

drug testing approach, however, reveals that there are still

drug abusers escaping detection, finally caught during yearly

random drug tests. és

The efficacy of a random drug testing program is proven

not only by detecting drug use through positive test results,

but also by the self-reported admission of drug use and/or

'* Despite the multiple other forms of drug testing utilized, random

drug testing in the Phoenix Fire Department has detected additional

positive results every year since the implementation of random drug tests

in 1999.

18

resignation of firefighters immediately prior to the admini-

stration of random tests.'°

It is the very nature of random tests that makes them such

powerful deterrents. Random tests, “the timing of which no

employee can predict with certainty,” will “significantly in-

crease the deterrent effect of the administrative penalties

associated with the prohibited conduct . . . concomitantly

increasing the likelihood that employees will forgo using

drugs or alcohol while subject to being called for duty.”

Skinner, 489 U.S. at 630. If random testing ceases, drug using

firefighters no longer face the certainty of discovery and

instead face the much smaller risk of falling under reasonable

suspicion. The incentive to self-identify or resign before be-

ing caught greatly diminishes.

Without proactive, random drug tests, employers are lim-

ited to reactive drug tests. Inherent in any reactive process is

the danger that the best indication of drug use may be the

worst possible circumstance: the revelation of drug use after

the occurrence of a catastrophic event. '°

While testing based upon individualized, reasonable suspi-

cion, in theory, appears to be somewhat proactive, it does not,

in practice, sufficiently safeguard the public. The efficacy of

reasonable suspicion testing depends upon the ability of ob-

servers to detect the signs and symptoms of drug abuse. As

courts have noted, however, it is easy to miss signs of abuse

as a drug impaired individual “will seldom display any

outward signs detectable by the lay person or, in many cases,

'SIn conjunction with the random drug testing program, Phoenix

provides a form of amnesty for individuals who “self-identify” their drug

problem. Many cities also allow firefighters to resign rather than face the

revelation of drug use through testing.

'© Confirmation that a firefighter’s drug abuse contributed to the slow

and painful burning death of a child is small consolat'on to the surviv-

ing parents.

‘ >

19

even the physician.” (citation omitted) Skinner, 489 U.S. at

628, quoting 50 Fed.Reg. 31526 (1985).

While working and living next to one another makes fellow

firefighters better situated than most to observe drug use, that

Same communal environment makes the reporting of ob-

served drug use far less likely. There is a brotherhood among

firefighters that creates strong bonds of trust and loyalty. As

admirable as those traits are, they can have serious repercus-

sions in the context of failure to report drug abuse.

Firefighters are fiercely independent, historically choosing

to handle matters like drug abuse internally. An expectation

that firefighters must “turn in” their fellow members upon

individualized suspicion of drug abuse creates an adversarial

process at odds with the familial relationship within a fire

station. This Court has noted a similar conflict within the

educational setting between a teacher’s roles as “educator,

adviser, friend, and parent-substitute” and a teacher’s obliga-

tion “of spotting and bringing to account [student] drug

use.” Vernonia School District 47 J v. Acton, 515 U.S. 646,

664 (1995).

In a perfect world, upon seeing the signs of drug abuse,

fellow firefighters would report possible drug abuse. Reason-

able suspicion testing would ensue. In practice, however,

individualized, reasonable suspicion testing is fraught with

complications. In the end, reasonable suspicion testing fails

because it relies on one firefighter to suspect the worst in

another. Accusatory by nature and individually stigmatizing,

reasonable suspicion testing is so vulnerable to human error

and human bias that it cannot be more practicable than

random drug testing, which completely eliminates the need

for human accusation and treats all firefighters equally. In

these respects, “testing based on ‘suspicion’ of drug use

would not be better, but worse.” /d. at 664.

20

Without random drug testing, a firefighter could escape

detection until a drug induced error finally creates reasonable

suspicion. This approach is unacceptable, however, where

even a single drug induced error could cause catastrophic

damage. Courts have recognized that drug impaired em-

ployees can cause such harm in a single train wreck,’’ air-

plane crashi,'® failed customs drug interdiction,' and are so

uniquely positioned to “cause great human loss before

any signs of impairment become noticeable to supervisors,”

Skinner, 489 U.S. at 628, that the safety sensitive nature of

their jobs supports a compelling interest in drug testing. The

harm that can be caused by a firefighter’s botched response to

a fire, drowning, accident, medical emergency, hazardous

material spill, or bombing is equal to, if not more safety

sensitive than these harms and is certainly “fraught with such

risks of injury to others that even a momentary lapse of

attention can have disastrous consequences.” /d. at 628.

If the job functions of customs agents, train operators,

officers, and airline employees, are so safety sensitive, and if

the risk of harm to the public by the failures of those

employees is so immediate and significant, as to overcome

the minimal invasion of those employees’ privacy interests

occasioned by drug testing, then surely the position of

firefighter is no less safety sensitive, and the risk of harm is

no less great as to merit their random drug testing.

CONCLUSION

As argued by the Petitioner, and supported by the fore-

going additional reasons, the petition for writ of certiorari

should be granted and the Arizona Supreme Court decision

should be reversed.

'” Skinner, 489 U.S. 602.

'8 Bluestein, 908 F.2d 451.

'9 Yon Raab, 489 U.S. 656.

* Counsel of Record

Respectfully submitted,

PETER VAN HAREN

City Attorney

SANDRA HUNTER *

Assistant City Attorney

CITY OF PHOENIX

200 W. Washington Street, Suite 1300

Phoenix, Arizona 85003-1611

(602) 262-6761

Counsel for Amici Curiae