32. The National Institute on Drug Abuse has reported a survey which indicates: 19% of Americans over 12 years of age have used illicit drugs in the past year; 65% of Americans between 18 and 25 years old have used illicit drugs; 44% of Americans between 18 and 25 years have used illicit drugs in the past year.
On February 11, 1988, this Court issued a temporary restraining order precluding the random testing of recruits or corrections officers at COTA. Those restraints have continued to the present. All claims in this action against the defendant New Jersey Department of Corrections and any claims for money damages against all defendants were (upon defense motions) dismissed by this Court by Order dated April 5, 1988. A consolidated hearing for preliminary injunction and trial upon the merits was conducted on April 14 and 15, 1988. Fed. R. Civ. P. 65(a)(2).
In addition to the stipulated facts, the Court makes the following findings of fact material to its decision in this case:
33. More frequently than not, recruits are sent to COTA promptly after they are hired. Corrections Officer Samuel Love was sent there about two months after he was hired. Plaintiff William Poole, a recruit, began his term at COTA approximately one week after reporting for duty in January 1988. At COTA, recruits are not exposed to the inmate population, nor are they required to live there although they may if they choose to. Most recruits are in their early twenties, the age group where illicit drug use is the most prevalent. Because of their limited time in service, recruits at COTA have little in the way of employment history within the Department of Corrections, and are relatively unknown to the trainers, supervisors and administrators in the department. Drug dependency often develops in response to stress that the user is unable to cope with in other ways. The duties and environment to which a COTA recruit will soon be exposed as a corrections officer in a prison frequently generate levels of extreme frustration and stress for an officer. It is reasonable and necessary to identify (to the fullest extent possible) those persons who, even in response to influences less stressful than those encountered by a corrections officer, have resorted to illegal drug use. Testing of urine samples randomly taken from recruits at COTA is reasonably calculated to achieve that important goal.
34. Within prison walls, only corrections officers and recruits who have completed COTA can be issued firearms. Those who perform transportation, outside tour, fugitive pursuit or tower guard duty do carry such weapons. The persons listed in stipulated paragraph 14 above are often in close contact with prisoners, and the institutional trade instructors often handle power tools and equipment which if misused by such a person under the influence of illegal drugs could pose a danger to others and to security and good order in that area of the prison. The corrections officers, however, run the prisons, and they alone respond to inmate disturbances and incidents (at which time they are sometimes armed from the prison arsenal). No "civilian" working in the prisons is subject to the same stresses provoked by inmate contact as are corrections officers. They are the most vulnerable to drug trafficking with prisoners and such unsavory results as favoritism, confrontations, debts, extortion and blackmail. The prison inmate population is both capable and inherently inclined to engage in such compromising conduct with corrections officers if given the chance. The opportunity and incentive for prisoners to engage in such conduct with civilian employees of the Department of Corrections is much less than it is with their guards and captors.
35. Information indicating that a corrections officer is suspected of using drugs can come from a number of sources under circumstances where confidentiality should be preserved. These sources include inmates, civilian employees within the prison, supervisors, other corrections officers, other law enforcement agencies, family members and acquaintances of the officer under suspicion. Other types of internal investigations of corrections officers are conducted by the Department of Corrections without the officer being advised of it at the outset. The Loudermill hearing, conducted as the first step in the hearing procedure available to a corrections officer, does not include the revelation of the source of the reasons for the individualized suspicion, nor is it constitutionally required at that stage. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 545-46, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). If and when directed by a departmental hearing officer or Administrative Law Judge to reveal such sources to the officer, the Department of Corrections does so.
36. Voiding the urine sample either in the presence of the monitor or in private only after having stripped in the monitor's presence is predictably embarrassing considering that urination is normally performed under conditions of privacy. Henceforth, however, every applicant for a position as a corrections officer has notice of the drug testing requirements, both at COTA and in the prison setting, to which he will be subject.
37. At COTA recruits receive training in firearms on a 22-man firing range without barriers between the stalls. Recruits practice and then attempt to qualify in proficiency with sidearm, rifle and shotgun. Approximately 50% of the recruits are using firearms for the first time. This training on the firing range begins in about the sixth week of the COTA course, and only after classroom training about these firearms. Shooting is done in various positions at various distances from the targets, and some of it is conducted in the dark. There are no comparably-sized ranges and no programs conducted with this intensity at any of the prisons themselves. Senior corrections officers to be requalified in firearms do so at COTA annually. Despite the fact that as many as ten instructors may be on duty at the COTA range during its use, an undetected drug abuser firing on that range would pose a substantial threat to the safety of others in that area.
38. Recruits also receive intense, condensed training in many other subjects, both mental and physical at COTA, including the use of weapons other than firearms. Attentiveness, alertness and physical fitness (all of which are imperiled by drug abuse) are important to the successful completion of these phases of their training.
Three claims require adjudication by the Court:
(1) May the defendants conduct random testing of recruits at COTA without violating their rights to equal protection of the laws and to freedom from unreasonable searches and seizures?
(2) Are the corrections officers' rights of due process violated when they are ordered to submit to drug testing upon reasonable individualized suspicion but at that moment are not advised of the reasons or the sources thereof.
(3) Are the corrections officers' rights to equal protection of the laws violated by the policy which subjects them to drug testing based upon reasonable individualized suspicion but does not impose such a requirement upon other Department of Corrections employees working in contact with inmates within prison walls?
I. Random Drug Testing of Recruits at COTA, Fourth Amendment Issue :
Drug testing programs of law enforcement personnel and persons employed in other sensitive and/or heavily regulated occupations have been subject to constitutional review in numerous United States District and Circuit Courts in recent years. Without pretending to be exhaustive, Exhibit B hereto is a list of such decisions considered by this Court in adjudicating the present action. For ease of presentation, in the course of this opinion several of those decisions will be referred to without repeated full citation. Additionally, since these opinions discuss at length those which preceded them, I will spare the present parties a detailed review of the facts and holdings of most of those cases.
The fourth amendment protects our citizens "against unreasonable searches and seizures." It is no longer debatable that the taking of a urine specimen for the purpose of performing a test to reveal drug usage is a "seizure" within the scope of the fourth amendment. The mixed question of fact and law for the Court to resolve is whether the random testing of the recruits at COTA is, under all the attendant circumstances, constitutionally "unreasonable." If not, whatever might be its other shortcomings, no fourth amendment claim may be predicated upon that policy.
With one exception (Railway Labor v. Burnley), no circuit court authority cited to this Court has declared a particular drug urinalysis policy based other than upon reasonable individualized suspicion violative of the fourth amendment rights of a person to be tested.
See Shoemaker v. Handel, McDonnell v. Hunter, National Treasury Employees Union v. Von Raab, Rushton v. Nebraska Public Power District and Jones v. McKenzie. Some district courts have reached the same result. See Transport Workers Local 234 v. SEPTA and Rushton. Throughout these cases runs a common thread that the particular job to be performed by the employee is the critical factor that tips the balance of rights in favor of the reasonableness of a random (or similar) urinalysis testing program. This Court determines that newly employed corrections officers (recruits) are so similarly situated to jockeys (Shoemaker), customs agents exposed to drugs and weapons (Von Raab), school bus drivers and attendants (Jones), train operators (SEPTA), and nuclear power plant workers (Rushton), that it is constitutionally reasonable to require their random testing under the specific policy promulgated on January 7, 1988. Indeed in McDonnell, random urinalysis of corrections officers on duty in medium and maximum security prisons withstood constitutional attack. The court states succinctly in McDonnell :
We believe the state's interest in safeguarding the security of its correctional institutions is at least as strong as its interest in safeguarding the integrity of, and the public confidence in, the horse racing industry [referring to Shoemaker ].
809 F.2d at 1308.
The New Jersey Bureau of Corrections has chosen a program designed to minimize the likelihood that drug abusers will go on full-time duty in the prisons by identifying these persons before they have served any considerable time within prison walls. Balancing the public interests, particularly those related to COTA training and the prison environment, as related in the findings of fact above, against the acknowledged invasion of the recruits' privacy by means of the manner in which the urinalysis is randomly ordered and thereafter conducted, this Court finds that the recruits are not thereby subjected to "unreasonable searches and seizures" in violation of the fourth amendment. Recruits are aware of the peculiar circumstances and demands of the occupation for which they are training and the imperative need that persons with a weakness for drug abuse not serve as corrections officers in the prison setting. Therefore, recruits, like jockeys, must be deemed to have "reduced . . . justifiable privacy expectations" regarding their training situation. Shoemaker, 795 F.2d at 1142. Because of the prison setting for which they are being trained, and the frustrations, stresses and influences that will be exerted against them there, the present plaintiff recruits are not situated similarly to the fire department and police department personnel included in the Capua and Washington Township cases. Furthermore, Capua involved a mass testing "raid" clearly not present in the case at bar, and Washington Township is presently on appeal to the United States Court of Appeals for the Third Circuit, the author of Shoemaker. Additionally, the random testing imposed at COTA is hardly onerous. No argument can be made that recruits will be subjected to prolonged, indefinite anxiety from this program: the entire training session is only eight weeks long. With two hundred or more recruits in a class, the forecast is that a recruit will be called upon approximately twice for random urinalysis at COTA. Finally, the promulgated policy is certain, particularized in its procedures and well calculated to preserve the integrity of the sample, to protect the due process rights of the persons tested and to insure accurate test results within the confines of present scientific techniques. Judgment is entered for the defendants upon plaintiff's fourth amendment claim.
II. Equal Protection Arguments
Two equal protection arguments are implicated in the present action: (1) why should recruits be tested at random when corrections officers are only tested upon reasonable individualized suspicion, and (2) why are not the "civilian" employees in regular contact with inmates also tested upon reasonable individualized suspicion?
The Third Circuit has recently reiterated the standard to be applied to equal protection arguments:
We next address the plaintiffs' argument that they have been denied equal protection of the law. The plaintiffs rightly refrain from contending that their equal protection claim is entitled to strict or heightened scrutiny; accordingly, we will apply the "general rule . . . that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40 [, 87 L. Ed. 2d 313, 105 S. Ct. 3249] (1985). See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, [49 L. Ed. 2d 520, 96 S. Ct. 2562] (1976) (holding rational basis standard appropriate for analyzing claim of unconstitutional deprivation of public employment, where no fundamental right or suspect class is concerned); see also United Bldg. & Constr. Trades Council of Camden v. Mayor of Camden, 465 U.S. 208, 219, [79 L. Ed. 2d 249, 104 S. Ct. 1020] (1984) (stating that "there is no fundamental right to government employment for purposes of the Equal Protection Clause"). The plaintiffs bear the burden of proof on this issue, and so must show that the requirements imposed by law or regulation "so lack rationality that they constitute a constitutionally impermissible denial of equal protection." Rogin v. Bensalem Township, 616 F.2d 680, 688 (3d Cir. 1980), cert. denied 450 U.S. 1029, [68 L. Ed. 2d 223, 101 S. Ct. 1737]. In considering this issue, we bear in mind the Court's statement that a statute or regulation should not be overturned on equal protection grounds "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97, [59 L. Ed. 2d 171, 99 S. Ct. 939] (1979).