O'CONNOR v. Police Commissioner of Boston , 408 Mass. 324 ( 1990 )

O’Connor, J.

The plaintiff was a police officer on probationary status in the Boston police department (department). He was assigned to the Boston Police Academy to train as a cadet for twenty weeks. The plaintiff was dismissed from the department after the department was notified by the company it had retained to conduct drug screening tests that the plaintiffs urinalysis test had revealed traces of cocaine. The plaintiff denied using cocaine. His request for permission to submit another urine sample was refused. On the day following the dismissal, a captain of the department informed the other cadets that the plaintiff had been discharged “because he had tested positive for drug use.”

The plaintiff brought this action seeking, among other forms of relief, a declaration that the defendants violated the plaintiffs rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States and by arts. 12 and 14 of the Declaration of Rights of the Massachusetts Constitution. The plaintiff also sought an order of reinstatement without loss of compensation and damages. In seven counts, the plaintiff asserts in his complaint that his rights to the various forms of relief he requests are grounded directly on the alleged violations of his constitutional rights, see Bivens v. Six Unknown Named Agents of Bureau of Narcotics, 403 U.S. 388, 396-397 (1971); Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction, 406 Mass. 156, 159-161 (1989); Phillips v. Youth Dev. Program, Inc., 390 Mass. 652, 657-658 (1983), and on the provisions of G. L. c. 12, §§ 11H and 111 (1988 ed.) (Massachusetts Civil Rights Act), and G. L. c. 214, § IB (1988 ed.) (right of privacy statute).

The plaintiff moved for summary judgment as to liability. The parties submitted a statement of agreed facts, affidavits, and excerpts from depositions. A judge ordered summary judgment for the defendants on all counts. The plaintiff appealed, and we allowed the plaintiff’s application for direct appellate review. We now affirm the judgment entered in the Superior Court.²

In addition to the facts set forth above, the materials submitted to the motion judge establish other facts as follows. As a condition of employment, the plaintiff was required to agree in writing to submit to urinalysis when requested to by the department. Thereafter, all the cadets were required without prior notice (apart from the aforesaid agreement) to provide a urine sample. The plaintiff was observed by department officers while urinating. Approximately one week later, every cadet was required to submit a second urine sample. These samples were discarded after a foreign object was found in one of the specimen bottles. On October 6, 1986, a third urine sample was required from all the cadets, and three days thereafter the plaintiff was dismissed.

On appeal, the plaintiff argues that the unannounced, warrantless, and suspicionless testing of all the cadets was an unreasonable search and seizure in violation of art. 14 of the Declaration of Rights of the Massachusetts Constitution.³,⁴ The defendants properly concede that the testing procedure constituted a search and seizure within the meaning of art. 14, see Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, 403 Mass. 692, 699-700 (1989), but the defendants do not agree that the search and seizure were “unreasonable.”

The reliability of the testing is not at issue in this case. Rather, we must decide whether the search and seizure were “unreasonable” within the meaning of art. 14. We begin our analysis with a discussion of National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). The facts, reasoning, and holding of that case are instructive. There, the Supreme Court held that a United States Customs Service drug testing program that required testing of all employees seeking positions directly involving the interdiction of drugs or the carrying of a firearm was compatible with the Fourth Amendment. The Court reiterated the general rule that a search and seizure must be supported by a warrant issued on the basis of probable cause to meet the Fourth Amendment’s “reasonableness” requirement. But the Court also reaffirmed the principle that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance. . . . [W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” (Citations omitted.) Id. at 665.

The Supreme Court recognized that “[t]he interference with individual privacy that results from the collection of a urine sample for subsequent chemical analysis could be substantial in some circumstances,” id. at 671, but nevertheless reasoned that those individual privacy interests were outweighed by “the Government’s compelling interests in safety and in the integrity of [the nation’s] borders.” Id. at 672. The Court held that “the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions which require the incumbent to carry a firearm, is reasonable. The Government’s compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation’s borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions, who enjoy a diminished expectation of privacy by virtue of the special, and obvious, physical and ethical demands of those positions.” Id. at 679.

As the Supreme Court has done in the Fourth-Amendment context, this court has recognized limited exceptions to the warrant and probable cause requirements where, to determine a search’s reasonableness and, therefore, validity, we have balanced the governmental need for the search against the search’s intrusiveness into a person’s reasonably expected privacy. See Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, supra at 704; Commonwealth v. Shields, 402 Mass. 162, 164 (1988); Commonwealth v. Trumble, 396 Mass. 81, 88-90 (1985). We employ the same process in this case. In doing so, we do not take lightly the intrusiveness of collecting a urine sample and subjecting it to chemical analysis, including the fact that such testing may be capable of revealing not only illicit drug use but other personal information, such as pregnancy, as well. We accept as true, too, that the intrusiveness is increased by cadets’ being monitored in the act of urinating (a practice that helps to ensure the integrity of the urine sample). However, we also take into account, as a factor that diminishes the degree of intrusiveness, that the cadets agreed to urinalysis testing before accepting employment.

We are satisfied that the public interest in discovering and deterring drug use by police cadets who have agreed in advance to urinalysis testing is of sufficient weight that such testing is reasonable within the meaning of art. 14. Drug use is often difficult to discern. Yet, drug use by police officers has the obvious potential, inimical to public safety and the safety of fellow officers, to impair the perception, judgment, physical fitness, and integrity of the users. Furthermore, the unlawful obtaining, possession, and use of drugs cannot be reconciled with respect for the law. Surely, the public interest requires that those charged with responsibility to enforce the law respect it. Surely, too, public confidence in the police is a social necessity and is enhanced by procedures that deter drug use by police cadets. See National Treasury Employees Union v. Von Raab, supra at 672; Guiney v. Roache, 873 F.2d 1557, 1558 (1st Cir.), cert, denied, 493 U.S. 963 (1989); National Fed’n of Fed. Employees v. Cheney, 884 F. 2d 603, 612-613 (D.C. Cir. 1989), cert, denied, 110 S. Ct. 864 (1990); American Fed’n of Gov’t Employees v. Skinner, 885 F.2d 884, 890-893 (D.C. Cir. 1989); McKenzie v. Jackson, 75 N.Y.2d 995 (1990).

The Chief Justice, in his concurring opinion, states that the cadets’ written agreement to submit to urinalysis testing constitutes consent, and that, given such consent, the court’s “resort to the manipulable balancing inquiry” is inappropriate. Obviously, we do not agree. Surely, the plaintiff would not be barred from relief if his consent to be the subject of a search and seizure were unreasonably required as a condition of employment. For example, if the plaintiff were seeking employment as a laborer, the State could not constitutionally require his consent to urinalysis testing as a precondition to such employment, and any consent given would be ineffective. The Chief Justice’s focus on the plaintiff as one seeking to become a police officer “authorized to carry and use a firearm” suggests that, in his view, the nature of the plaintiff’s employment makes a difference, that the reasonableness of the consent requirement must be considered, and that what is reasonable depends on the circumstances. Implicitly, the Chief Justice’s approach accepts the necessity of the court’s balancing the competing interests of the individual and the public. The other concurring Justices, despite their disclaimer, have also engaged in a balancing of the cadets’ interest against that of the public employer.

Our determination that the warrantless, suspicionless urinalysis testing of police cadets in the circumstances of this case is not “unreasonable” within the meaning of art. 14 not only disposes of the plaintiff’s claims based directly on art. 14 but it substantially resolves the plaintiff’s claim under

G. L. c. 214, § IB, as well. Chapter 214, § IB, provides in relevant part that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.” The plaintiff makes two arguments: (1) the test to which he was subjected was an unreasonable invasion of his privacy, (2) the statute provides a right against an invasion of privacy that is either unreasonable or, in any event, is substantial or serious.

We have recognized that, in “private employment!,] there may be inquiries of a personal nature that are unreasonably intrusive and no business of the employer.” Bratt v. International Business Machs. Corp., 392 Mass. 508, 520 (1984), quoting Cort v. Bristol-Myers Co., 385 Mass. 300, 308 n.9 (1982). The same may be said about public employment. To determine whether the inquiry amounts to a violation of c. 214, § IB, however, “the employer’s legitimate interest in determining the employees’ effectiveness in their jobs should be balanced against the seriousness of the intrusion on the employees’ privacy.” Bratt, supra at 520. Regardless of whether the urinalysis conducted in this case constitutes an “inquiry” as referred to in Bratt, the test of reasonableness depends on a balancing of the competing interests of the plaintiff and the defendants, the very process we undertook in considering the plaintiff’s art. 14 claim. As we have said, the defendants had a compelling interest in determining whether cadets were using drugs and in deterring such use. Those interests outweigh the plaintiff’s privacy interest not only under art. 14, but under G. L. c. 214, § IB, as well.

The plaintiff’s second argument in reference ■ to G. L. c. 214, § IB, is that the words in the statute, “unreasonable, substantial or serious,” are “phrased disjunctively,” so that, even if the interference with the plaintiff’s privacy were reasonable, it is nevertheless actionable on the ground that it was substantial or serious or both. We think that it is highly unlikely that the Legislature intended to provide a right of action to a person whose privacy was substantially or seriously interfered with, but reasonably so. However, we need not resolve that question of statutory construction because, in any event, we are satisfied that, in light of all the circumstances, including the plaintiff’s preemployment agreement to submit to urinalysis testing, any interference with his privacy rights was neither “substantial” nor “serious” within the meaning of those statutory words.

We turn now to the plaintiffs claim that, by refusing to grant him a name-clearing hearing after discharging him and notifying the other cadets that the dismissal had resulted from the plaintiffs positive urinalysis result, the defendants violated the plaintiffs due process rights secured by the Fourteenth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. See Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972); Stetson v. Selectmen of Carlisle, 369 Mass. 755, 762-763 (1976); Smith v. Commissioner of Mental Retardation, 28 Mass. App. Ct. 628, 634-635 (1990). The short, and we think adequate, answer to this claim is that although the motion judge considered, and rejected, the claim on its merits, there is nothing in the materials submitted to the judge or even in the pleadings that suggests that the plaintiff ever requested the defendants to provide a hearing. The plaintiffs denial that he used drugs and his request to be retested neither expressly nor impliedly constitute a request for a hearing concerning the accuracy of the test he underwent. We note that, even on appeal, the plaintiff does not appear to seek an order that would require the defendants to provide a hearing. The plaintiffs due process claims under the Federal and State Constitutions have come too late, and, for that reason alone, fail.

Finally, we briefly address the plaintiffs claim based on G. L. c. 12, §§ 11H and 111. We quote from the plaintiffs brief as follows. “[The plaintiff] contends that the termination of his employment following the required urinalysis drug testing was violative of rights secured to him under art. 14 of the Massachusetts constitution and the Massachusetts Privacy Act. He also contends the Defendants wrongfully denied him his right to a name-clearing hearing. If this Court concurs with [the plaintiffs] claims in the above regard, it should also rule that the Superior Court thereby erred in granting summary judgment against [the plaintiff] on his civil rights claim.” Since we do not concur with the plaintiffs other claims, we also reject the claim under G. L. c. 12.

Judgment affirmed.

2 We acknowledge the brief submitted by the Massachusetts Civil Liberties Foundation' as amicus curiae.

3 On appeal, the plaintiff does not argue that the drug testing violated his rights secured by the Fourth Amendment.

4 Art. 14 provides in pertinent part, “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.”