Fraternal Order of Police, Lodge No. 5 v. Tucker

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This case arises from the City of Philadelphia Police Commissioner’s decision to suspend with intent to dismiss four city police officers after they refused an order to submit to urinalysis. The officers sued the City and the Commissioner, alleging that the defendants violated their right to procedural due process under the fourteenth amendment, as well as their right under the fourth amendment to be free from unreasonable searches and seizures.

We agree with the district court that the defendants had a reasonable basis for suspecting that the officers were using drugs while on duty, and therefore will affirm the district court’s grant of summary judgment in favor of the defendants on the fourth amendment claims. However, because the defendants did not provide the police officers with sufficient information concerning the evidence in possession of the department to permit a meaningful response to the charges against them, we will reverse the district court’s judgment in favor of the defendants on the plaintiffs’ procedural due process claims, and remand this case to the district court for further proceedings consistent with this opinion.

I.

On February 26, 1986, the Philadelphia police department received an anonymous phone call from a “community leader of West Philadelphia” reporting that numerous residents in that area had observed police officers congregating and behaving unusually behind the tennis courts on the Cobb Creek Parkway at Catherine Street. The caller related that people were afraid of the officers, as they were apparently using drugs and were “acting crazy.” App. at 133.

The department’s Internal Affairs Division initiated an investigation and began surveilling the area the next day, February 27. After a period of observation ending March 17, the surveillance team determined that four particular officers were spending a substantial amount of time behind the tennis courts. These officers were identified as Reginald Adams, Willie Carroll, Bennie Noble, and George Smith.

Although the surveillance team was able to determine the identity of these officers, it was unable to get close enough to determine specifically what they were doing. On one occasion, the team did observe a small flash of fire, which burned for a few seconds. Upon returning to the site the next day, the team recovered from the ground a partially burned police report, a burned bottle cap, and a straw. The team also observed several instances of “reckless” and one instance of “bizarre” driving. App. at 136.

The recovered items were brought back to the Internal Affairs Division Headquarters in an attempt to determine whether they had been used to consume drugs. However, after a staff inspector contacted the Chief of the Police Department’s Chemical Laboratory and was advised that the items would be “worthless as evidence,” app. at 157, the items were discarded. Nevertheless, the Internal Affairs Division contacted officers in the narcotics unit, who advised that the items were consistent with the use of “crack.” App. at 137-38.

On March 17, officers Adams, Carroll, Noble and Smith were asked to submit to urinalysis at police headquarters. When they refused, the Police Commissioner ordered them to submit to urinalysis. On the advice of their counsel, they refused this order.

The officers were then suspended without pay for 30 days pending dismissal (i.e., suspended with intent to dismiss). Additionally, the police department issued a press release, which included photographs of the officers, stating that the officers had been suspended for refusing an order to submit to urinalysis based on suspected drug use. Stories relating the contents of the press release, including photographs of the officers, were carried in newspapers and broadcast on television news shows.

On April 4, 1986, the officers were served with Notices of Intention to Dismiss. These formal notices charged the officers with refusing to submit to urinalysis, and also added the additional charge of falsifying logs and being off sector.¹ The officers had not been informed of the latter charges when they were suspended on March 17.

Pursuant to the collective bargaining agreement between the City and the police officers’ union, the police officers filed a grievance on March 17 challenging their suspensions and dismissals. After the grievance was denied by the Police Commissioner, the matter was submitted to binding arbitration as provided in the collective bargaining agreement.

On September 12, 1986, the parties presented their arguments at a hearing before the arbitrator, and on January 27, 1987, the arbitrator issued an award. He sustained the grievance, ruling that the City had no authority under the collective bargaining agreement to order the officers to submit to urinalysis,² and that the officers had therefore been improperly dismissed for refusing the order. He did find, however, that a thirty day suspension for the other charges was appropriate. The arbitrator’s decision was affirmed on appeal to the Court of Common Pleas, and that court’s decision was affirmed by the Commonwealth Court.³

The officers and their union filed this action on March 12, 1987, alleging that the officers had been deprived of rights protected by the United States Constitution.⁴ They claim that the defendants violated their fourth amendment right to be free from unreasonable searches when the defendants demanded that they submit to urinalysis. They also claim that the defendants violated their right to procedural due process when they were deprived of their property interests in their jobs and their liberty interests in their good names and reputations, without a meaningful opportunity to respond to the charges against them.

The district court granted the defendants summary judgment on the fourth amendment claims. After a trial, it entered judgment for the defendants on the claims alleging a deprivation of property and liberty without due process of law. The plaintiffs appeal from these dispositions.

II.

A. Unreasonable Search and Seizure

The plaintiffs assert that the investigation conducted by the department did not give rise to a reasonable suspicion of drug use, and thus did not meet the standard established by this Court in Copeland v. Philadelphia Police Dep’t, 840 F.2d 1139 (3d Cir.1988). We agree that the Copeland standard applies in this case, as the urinalysis was not conducted pursuant to a random drug urinalysis program of the type we have approved in Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986), and Policeman’s Benevolent Ass’n of New Jersey v. Township of Washington, 850 F.2d 133 (3d Cir.1988). As we held in Copeland, the appropriate standard is “whether the department had a reasonable suspicion that [a particular officer] was a user of illegal drugs.” 840 F.2d at 1143. This standard requires “an objective evaluation of whether reasonable suspicion existed.” Id. at 1144. Factors important to such an evaluation include: “(1) the nature of the tip or information; (2) the reliability of the informant; (3) the degree of corroboration; and (4) other facts contributing to suspicion or lack thereof.” Id. (quoting from Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 205 (2d Cir.1984)).

Applying these factors to the present case, we hold that the plaintiffs’ Fourth Amendment rights were not violated by their discharge because the Internal Affairs officers had a reasonable suspicion of on-duty drug use to support the urinalysis order. The complaint that precipitated the investigation (1) came from an apparently reliable source, (2) included detailed accounts of observations made by a number of different people on a number of different occasions, and (3) was corroborated in important respects by subsequent surveillance of the scene by the Internal Affairs Officers. As the district court found:

... [T]he police received a telephone call from a community leader who wished to remain anonymous on February 26, 1986. The caller said that residents of the Cobb Creek Park area complained that police officers drive their patrol cars into the Cobbs Creek Park both in the early morning and early evening hours. One anonymous female resident stated that police drive their cars onto the grass behind the tennis courts and use drugs. An anonymous male resident stated that he saw a police car sitting behind the tennis courts while he was walking his dog in the early morning hours. The resident said that a small fire was burning beside the driver’s door of the car. As the resident approached, the police officer began to drive off. The police officer then backed up at a high rate of speed and stopped. The officer drove back to the fire, stamped it out and then drove off at a high rate of speed.

The subsequent surveillance corroborated that the plaintiffs were congregating behind the Cobb Creek Park tennis courts on a regular basis with their car lights turned off, that plaintiffs engaged in fast and erratic driving, and that plaintiffs caused a “brief flash of fire” at a location where paraphernalia used in the making of “crack” was subsequently discovered. This evidence was clearly enough to justify the urinalysis order and, accordingly, warranted summary judgment for the defendants on the Fourth Amendment claim.

B. Deprivation of Property Without Due Process

After trial, the district court made the following findings concerning the process afforded plaintiffs on the morning of March 17, 1986:

1. On the morning of March 17, 1986, each of the plaintiffs, Philadelphia police officers, was taken to the Internal Affairs Division of the Philadelphia Police Department. Upon arriving at the Internal Affairs Division, they were told that there was a complaint of drug use involving police officers; however, they were not told anything specific about the drug use allegations being investigated or the evidence regarding this drug use allegation.

2. Plaintiffs were told that they would be asked questions regarding their on-duty performance and would be asked to substantiate their activities at certain times and places, however, plaintiffs were never asked any questions regarding the performance of their duties.

3. Plaintiffs were told that they would be requested to submit to a urinalysis examination. When told that they would be requested to submit to a urinalysis, plaintiffs asked for the presence of their Fraternal Order of Police (FOP) representative. Plaintiffs were notified individually that the order to submit the urine sample had come directly from defendant Police Commissioner, Kevin M. Tucker. They were warned that disobedience would be disciplined with measures up to and including dismissal.

4. Plaintiffs, acting upon the advice of counsel and their FOP representative, refused the urinalysis request and order given by Captain Kerrigan.

With respect to plaintiffs’ opportunity to tell their side of the story prior to the suspensions with intent to dismiss and pri- or to the press release, the district court also found as follows:

Plaintiffs’ opportunity to respond to the order that they submit to urinalysis tests was manifested in their refusal to do so on advice of counsel. They were discharged for refusing that order. Having chosen to respond in this manner, plaintiffs cannot claim lack of opportunity to respond to the charges.

Plaintiffs in the case at bar had an opportunity to respond to the information released ... prior to its release at the time the urinalysis was requested....

As we read the district court’s opinion, it found that plaintiffs were warned when the urinalysis was ordered that disobedience could result in discipline, that they thereafter had an opportunity, with the assistance of counsel, to state any objections, and that their only response was to refuse to obey the order.

These findings are not clearly erroneous. The record reflects a substantial amount of conversation between plaintiffs’ counsel and Captain Kerrigan, Commissioner Tucker’s surrogate on the spot, at the time the urinalysis was first requested of plaintiffs and then ordered. A permissible inference from this evidence was that plaintiffs and their counsel could have protested the validity of the order when it was given and could have otherwise objected to the threatened discipline, but declined to do so. Indeed, the record affirmatively suggests that counsel expected temporary suspensions, rather than discharges, and was planning to raise the validity of the order when those suspensions or other lesser discipline were grieved and arbitrated.

The defendants concede that the plaintiffs have cognizable property interests in their positions as police officers that are sufficient to trigger the procedural due process protection of the Fourteenth Amendment. See Copeland, 840 F.2d at 1144 (Philadelphia police officers have a cognizable property interest in their jobs); Gniotek v. City of Philadelphia, 808 F.2d 241, 243 (3d Cir.1986) cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 839 (1987) (same). The issue before us, then, is whether the process afforded the officers meets the fourteenth amendment standard.

In Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the Supreme court held that a public employee with a property interest in his or her job is entitled to a “pretermination opportunity to respond, coupled with post-termination administrative procedures.” Id. at 547-8, 105 S.Ct. at 1496. In particular, a “tenured public employee is entitled to [pretermination process consisting of] oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546, 105 S.Ct. at 1495. The pretermination hearing may be informal so long as it affords the employee an opportunity to make any “plausible arguments that might ... prevent [the] discharge.” Id. at 544, 105 S.Ct. at 1494.

In Gniotek v. City of Philadelphia, 808 F.2d 241 (3d Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 839 (1987), six officers were “suspended with intent to dismiss,” an action which we held to be tantamount to dismissal. 808 F.2d at 244 (“[W]e hold that before appellants were suspended with intent to dismiss they were entitled to whatever pretermination procedures the Constitution mandates prior to actual dismissal”). Applying Loudermill, we found that the predeprivation procedure employed in that case, in which each officer was individually called’ into the Inspector’s office, informed of the charges against him, and given an opportunity to make a statement, was constitutionally adequate. Id. at 244-46.

Similarly, in Copeland v. Philadelphia Police Dep’t, 840 F.2d 1139 (3d Cir.1988), we again noted the constitutional requirement that a city provide an officer with notice and an opportunity to be heard prior to terminating his employment. Since the officer in that case had been orally informed of the charges against him, had been advised of “the substance of the relevant supporting evidence,” and had been given an opportunity to explain such evidence at an informal pretermination hearing, we held that his right to procedural due process had not been violated. 840 F.2d at 1145 (quoting Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987)).

In this case, the plaintiffs were orally informed on March 17 that they were to be disciplined for refusing the Commissioner’s order to submit to urinalysis. The district court found that the officers and their counsel were given the opportunity to state any objections they might have to the proposed discipline.⁵ Under Gniotek, we think this process was sufficient with respect to any plausible arguments the plaintiffs were in a position to make at that time, including the argument, ultimately sustained by the arbitrator, that the order was invalid. This does not end the inquiry, however.

In Loudermill, the Supreme Court held that a public employee who, like the plaintiffs here, has a property interest in his or her employment is entitled to a meaningful pre-termination hearing. It further held that a sina qua non of a meaningful hearing is a sufficient explanation of the employer’s evidence to permit a meaningful response. The district court here found as a fact that the plaintiffs were advised “that there was a complaint of drug use involving police officers” but that “they were /not told anything specific about the drug Use allegations being investigated or the evidence regarding this drug use allegation.” Without this information plaintiffs and their attorneys, even assuming they were afforded the opportunity to tell plaintiffs’ side of the story, had no opportunity to explain or rebut the evidence giving rise to the “reasonable suspicion” of on-duty drug use. We hold that the failure to afford plaintiffs such an opportunity prior to the deprivation of their property interests in their jobs constituted a denial of their right to procedural due process.

In reaching this conclusion, we do not question the finding of the district court that plaintiffs were discharged for failing to obey the urinalysis order, rather than for on-duty drug use per se. This fact does not render a fundamentally unfair process fair, however; nor does it suggest that a hearing would have been pointless. We have elsewhere noted the substantial intrusion on privacy interests occasioned by compelled urinalysis. See, e.g., Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986). In a situation of this kind, there are many reasons other than guilt of on-duty drug use for an officer to be reluctant to accede to an order to submit to urinalysis. This is important because the defendants do not contend that refusal to obey an order, even one to submit to urinalysis, necessitates a discharge under departmental policy. The appropriate discipline depends on all of the surrounding circumstances and one of the more important of these would be whether the facts giving rise to the “reasonable suspicions” have been explained in a manner consistent with innocence. We decline to assume that Commissioner Tucker would be sufficiently insensitive to the privacy interests involved in compelled urinalysis that he would insist on discharges for plaintiffs’ refusal to obey the urinalysis order even if he were otherwise satisfied that there had been no on-duty drug use.

We have held that the City’s interest in a drug free police force justifies the intrusion of compelled urinalysis whenever there is a basis for a reasonable suspicion of drug use. Copeland, 840 F.2d at 1143-44. That relatively low standard will be met in many instances in which the suspicion does not correspond with reality. In such instances, the opportunity to explain the misleading appearances before a dismissal and the attendant publicity will be of great importance to both the officer involved and, ultimately, to the Department.⁶

It follows that the judgment of the district court must be vacated and the case remanded. On remand, the district court should first determine whether the parties implicitly understood that the issues of liability and damages had been bifurcated for the purpose of trial. The record reflects no such bifurcation, but the fact that no evidence of damages was tendered at trial suggests to us that there may have been an off-the-record understanding with respect to this matter.

If there was no bifurcation, the case must be decided on the current record. Accordingly, the district court should enter a declaratory judgment stating that plaintiffs’ right to procedural due process was violated and enter a damage judgment in plaintiffs’ favor in the amount of $1.00. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (where record contains no evidence of actual damages, students denied procedural due process pri- or to suspensions from school are entitled to recover nominal damages, not to exceed one dollar). Since plaintiffs do not ask for a belated Roth hearing,⁷ the district court can do no more by way of relief.⁸

If, on the other hand, there was a bifurcation, another trial should be held to afford plaintiffs an opportunity to prove damages that are causally related to the due process violation. In connection with their prayers for compensatory damages occasioned by their discharge, the district court will have to determine whether plaintiffs would have been discharged even if they had been informed of facts giving rise to the reasonable suspicion and had been given an opportunity to explain or refute those facts. There can be no relief with respect to compensatory damages for injuries occasioned by the alleged deprivations (i.e., the dismissals and the press release) unless it is determined that, with such an opportunity, the result would have been different.⁹ See, e.g., Carey v. Piphus, 435 U.S. at 260, 98 S.Ct. at 1050; Rodriguez de Quinonez v. Perez, 596 F.2d 486, 491 (1st Cir.1979), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979).

If there was a bifurcation, plaintiffs should also be given the opportunity to prove that as a proximate result of the failure to afford an opportunity to explain or rebut the reasonable suspicion, they suffered emotional distress and injury to their reputations. If the district court determines that such an opportunity would have resulted in no discharge and no press release, we perceive no reason why the damage occasioned by the press release should not be recoverable whether or not there is an independent, meritorious claim for deprivation of a liberty interest without due process of law. See, e.g., Marrero v. City of Hialeah, 625 F.2d 499, 514 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981) (where there is no deprivation of a liberty interest, plaintiffs may nevertheless recover for damages to their reputational interests occasioned by the denial of an independently secured contitutional right); see also Hinkle v. Christensen, 733 F.2d 74, 76 (8th Cir.1984) (compensatory damages for injury to reputation recoverable for violation of First Amendment rights).

C. Deprivation Of Liberty Without Due Process Of Law

On remand, the district court need not concern itself with plaintiffs’ claim that they were deprived of a liberty interest without due process of law. Defendants are entitled to judgment on that claim.

In Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), a probationary policeman had been dismissed without a hearing “because while still a trainee he had put a revolver to his head in an apparent suicide attempt.” 429 U.S. at 626, 97 S.Ct. at 883. The officer brought a civil rights action claiming that he had been deprived of a liberty interest without due process of law when the defendants “imposed a stigma ... that foreclosed his freedom to take advantage of other employment opportunities.” 429 U.S. at 625, 97 S.Ct. at 883. Like the plaintiffs in this case, he sought reinstatement and damages resulting from the denial of a predeprivation hearing but did not ask for a delayed hearing before the Department at which he would have the opportunity to refute the charge in question.

The Supreme Court held that “[assuming all of the other elements necessary to make out a claim of stigmatization under Roth and Bishop,” 429 U.S. at 627, 97 S.Ct. at 884,¹⁰ the plaintiff had failed to prove a final necessary element. “Nowhere in his pleadings or elsewhere [had the plaintiff] affirmatively asserted that the report of the apparent suicide attempt was substantially false [, and neither] the District Court nor the Court of Appeals [had] made any such finding.” Id. The Supreme Court held that given “the nature of the interest sought to be protected [by the constraints of the Due Process Clause on liberty deprivation], the absence of any such allegation or finding [was] fatal to [plaintiff’s] claim under the Due Process Clause that he should have been given a hearing.” Id.

In this case, as in Codd, there is neither a finding nor evidence at trial to support a finding that the press release was false or even misleading. Accordingly, it follows from Codd that plaintiffs failed to prove their liberty interest claim.

The press release reported that plaintiffs had been discharged for refusing to obey an order to submit to urinalysis based on suspected drug use. Plaintiffs’ complaint alleged the following with respect to this release:

The publication of names and pictures of Plaintiffs Adams, Carroll, Noble and Smith via press releases and media interviews in conjunction with unconfirmed and unsubstantiated allegations of drug use and their discharge for refusing a urinalysis has subjected Plaintiffs Adams, Carroll, Noble and Smith to public humiliation and degradation, affecting their standings in the community, depriving them of their liberty interest in their reputations in violation of their Fifth and Fourteenth Amendments of the Constitution of the United States and Article I of the Pennsylvania Constitution.

App. at 19. Thus, plaintiffs allege only that their names and picture were circulated in conjunction with “unconfirmed and unsubstantiated” allegations of drug use.

If there is stigmatization in a situation of this kind it comes not from the report of a suspicion, reasonable or otherwise, but from the overall message communicated by the release. See, e.g., Rodriguez de Quinonez v. Perez, 596 F.2d 486, 490 (1st Cir.1979), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979) (“It is true that, strictly read, the statute [under which the plaintiff was removed from office] does not require an official determination or charge of dishonesty, but only a finding that there is sufficient ‘evidence’ of dishonesty to warrant invoking the statute. This superfine distinction would have little practical effect, however, in reducing the clear imputation of dishonesty flowing from removal under this statute.”).

When a police department announces to the media that it has information sufficient to occasion an investigation of on-duty drug use, that in this context the officer under investigation refused urinalysis, and that the Department considered the overall situation such as to warrant dismissal, other law enforcement agencies are unlikely to consider the officer for other employment because, at least without more information than that reported, they will conclude that the officer is more likely than not guilty as charged. Accordingly, if the plaintiffs had alleged and proved in this case that they had not used drugs behind the Cobb Creek Park tennis courts or that they had substantial evidence to tender at a hearing in support of such an allegation, they, at least arguably, would have made out a stigmatization case under the Due Process Clause. However, as indicated by the above-quoted allegation from their complaint, plaintiffs claim only that the defendant’s allegations were “unconfirmed and unsubstantiated,” not that they were untrue. The fact that this was no oversight is evidenced by their failure to tender any evidence at trial that would support a finding that they were falsely accused and by their failure to request an administrative hearing at which to offer evidence to clear their names.¹¹

III.

Accordingly, we will reverse the judgment of the district court and remand for further proceedings consistent with this opinion solely on plaintiffs’ claims that they were deprived of their property interest in their jobs without procedural due process.

1 . The officers had been first notified of these additional charges on April 3, when they were served with departmental charges alleging these violations.

2 . Specifically, the arbitrator reasoned that since the collective bargaining agreement neither authorized nor prohibited drug testing, he had to look to the Philadelphia Home Rule Charter and Civil Service regulations, which are incorporated by reference into the agreement, to determine whether the City had the authority to discharge an officer for refusing an order to submit to urinalysis. He concluded that the order to submit to urinalysis was unlawful in light of the lack of a rule authorizing urinalysis as an information gathering procedure.

3 . The City has filed a petition for allocatur with the Pennsylvania Supreme Court.

4 . The plaintiffs also contended that they were deprived of rights protected by the Pennsylvania Constitution, but they have not pursued those contentions on appeal.

5 . As we concluded in Copeland, the due process clause can be satisfied by oral notice. 840 F.2d at 1145. The officers do, however, contend that their due process rights were violated when they were not given notice of the charges that they had falsified logs and were off sector before they were effectively discharged. As we read the record, however, the department had not yet formulated these charges when it effectively dismissed the officers on March 17. The officers were discharged on March 17 because they refused the order to submit to urinalysis. When these additional charges were formulated, the officers were given an opportunity to respond to them before any additional sanction was imposed. We see no violation of procedural due process in this procedure.

6 . We emphasize that it is not necessary to reveal to the officer during an investigation the facts giving rise to the reasonable suspicions; nor does due process require even an informal notice and hearing prior to an order that he or she submit to urinalysis. We hold only that a meaningful opportunity to be heard on the underlying charge is required before the officer can be deprived of his or her employment.

7 . See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

8 . If the arbitrator’s award should be overturned by the Pennsylvania Supreme Court, the district court also would be required to consider whether plaintiffs’ prayer for reinstatement should be granted.

9 .The defendants should be allocated the burden of proving that plaintiffs would have been discharged even if adequate notice had been given to them. Alexander v. Polk, 750 F.2d 250, 264 (3d Cir.1984). In some cases, plaintiffs may be able to recover for proven mental and emotional distress occasioned by the failure to afford due process per se even though the deprivation itself was justified. Carey v. Piphus, 435 U.S. at 263-64, 98 S.Ct. at 1052; Rodriguez de Quinonez v. Perez, 596 F.2d 486, 491 n. 5 (1st Cir.1979), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed. 2d 51 (1979). We do not rule out the possibility that plaintiffs may be able to create a record which would support such a recovery.

10 . See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

11 . At trial, the parties stipulated that, if called, the witnesses in the arbitration proceeding would give the same testimony they gave before the arbitrator. It was only in this manner that testimony from the plaintiffs became a part of the record in this case. Before the arbitrator, none of the plaintiffs denied on-duty drug use. Indeed, they were not asked about the matter. The closest there is to a denial is plaintiff Smith’s testimony that an officer might be behind the tennis courts with his lights off for reasons other than drug consumption, app. at 277, and plaintiff Noble’s testimony that he had been behind the tennis courts on occasion to do some paperwork and relax. App. at 291.