Original WP 5.1 Version (NOTE: This decision was approved by the court for publication.)
This case can also be found at 290 N.J. Super. 406.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
NEW JERSEY TRANSIT PBA LOCAL 304,
NEW JERSEY TRANSIT CORPORATION,
Argued April 2, 1996 - Decided May 21, 1996
Before Judges Michels, Villanueva and Kimmelman.
On appeal from Superior Court of New Jersey,
Law Division, Essex County.
Stephen B. Hunter argued the cause for appellant
(Klausner & Hunter, attorneys; Mr. Hunter, of counsel
and on the brief).
Robert A. Shire, Deputy Attorney General, argued the
cause for respondent (Deborah T. Poritz, Attorney
General, attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Mr. Shire and E. Philip
Isaac, Deputy Attorney General, on the brief).
Zazzali, Zazzali, Fagella & Nowak, attorneys for amicus
curiae New Jersey State Policemen's Benevolent
Association (Paul L. Kleinbaum, of counsel and on the
The opinion of the court was delivered by
VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).
Plaintiff New Jersey Transit PBA Local 304 (PBA or
plaintiff) appeals from a summary judgment of the Law Division
entered in favor of defendant New Jersey Transit Corporation
upholding the constitutionality of the random drug and alcohol
testing of its policemen who carry firearms for security purposes
and denying its application for an order to show cause to obtain
a temporary and permanent restraining order. We affirm.
Plaintiff seeks a reversal of the judgment and a declaration
that the random, unannounced testing components of the New Jersey
Transit's Drug and Alcohol-Free Workplace Policy regarding its
police officers who carry firearms for security purposes is a
violation of article I, paragraph 7 of the New Jersey
Constitution. Plaintiff also asserts that the trial court failed
to properly apply the balancing test traditionally utilized to
determine whether such policy violates the New Jersey
Defendant New Jersey Transit Corporation (Transit) is a
state agency responsible for operating and improving public
transportation in New Jersey. N.J.S.A. 27:25-2a, -2b. To
further these objectives the New Jersey Legislature empowered
Transit to comply with federal rules and regulations, and apply
and qualify for, accept and expend financial assistance available
under federal law to assure the support and continuance of public
transportation. SeeN.J.S.A. 27:25-5(g). Indeed, the
Legislature intended that Transit comply with federal law upon
which funding is conditioned so as to be eligible to receive
federal funding. SeeIn re NJ Transit Bus Operations, Inc.,
125 N.J. 41, 48-49 (1991).
Plaintiff is the recognized majority representative for all
police officers under the rank of captain employed by Transit.
Plaintiff represents approximately one hundred and twenty-five
police officers, only six of whom, as of April 1995, were
assigned to ride on designated Transit trains.
Transit's police department has police and security
responsibilities over all Transit locations and services.
N.J.S.A. 27:25-15.1a. The officers have general authority within
those locations and services to exercise police powers and
duties, as provided by law for police officers and law
enforcement officers, in all criminal and traffic matters at all
times throughout the State of New Jersey. Ibid. They are
required to comply with all policies established by the Attorney
General, including rules and regulations, directives, advisory
opinions, and other guidelines. Ibid. Transit's executive
director is authorized to appoint and employ the officers and is
required, through Transit's chief of police and in accordance
with procedures established by the State Police, to investigate
and determine the character, competency, integrity and fitness of
all applicants. Ibid. Transit police officers must satisfy the
training requirements established by the Police Training
Commission. N.J.S.A. 27:25-15.1c. Transit's officers are
authorized to carry firearms, N.J.S.A. 2C:39-5, N.J.S.A. 2C:39-6a(7)(a) and N.J.S.A. 27:25-15.1d, provided they satisfactorily
complete a firearms training course, N.J.S.A. 27:25-15.1d. They
are also authorized to use deadly force. N.J.S.A. 2C:3-7.
In October 1986 the Attorney General of New Jersey (Attorney
General) issued guidelines regarding the urine testing of police
officers. Attorney General of New Jersey, Law Enforcement Drug
Screening Guidelines 2 (Oct. 22, 1986). Based upon the
recommendations of the New Jersey Criminal Advisory Council, the
Attorney General concluded that "the establishment of uniform
statewide drug testing guidelines is absolutely necessary in
order to maintain a drug-free law enforcement community and at
the same time safeguard the rights of individual police
officers." In setting forth specific guidelines, the Attorney
General "strongly urged" that (1) law enforcement applicants who
will be authorized to carry a firearm be required to submit to
urinalysis prior to appointment; and (2) all officers should be
subjected to unannounced drug testing by urinalysis during
mandatory basic training. Ibid. Additionally, and most
pertinent for purposes of this appeal, the guidelines state:
Permanently appointed law enforcement
officers should be required to undergo
further mandatory drug screening whenever
there is individualized reasonable suspicion
to believe that the officer is unlawfully
using drugs. Officers should be tested under
these circumstances only with the approval of
the county prosecutor or chief executive
officer of the department or his designee.
[Ibid. (emphasis added).]
Thus, in adopting these guidelines, the Attorney General did
not specifically authorize the use of random drug testing, but
rather required the existence of "individualized reasonable
suspicion" of drug use before the testing of a law enforcement
employee could be conducted. In revised guidelines which became
effective August 1, 1990, the Attorney General addressed the
procedural aspects of the drug-testing policy. However, the
Attorney General did not change the requirement that there be
reasonable suspicion before a drug test could be administered,
stating that testing would be conducted based only on facts that
provided a reasonable objective suspicion that the officer is
illegally using drugs.
In 1991 Congress, in the interest of mass transportation
safety, passed the Omnibus Transportation Employee Testing Act
(Act) requiring the Secretary of Transportation to issue rules
which mandate that mass transit operators receiving federal funds
under section 3, 9 or 18 of the Urban Mass Transportation Act of
1964See footnote 1 conduct pre-employment, reasonable suspicion, random and
post-accident testing for alcohol and drug use in employees
responsible for safety-sensitive functions.
§5331(b). Failure to test, Congress directed, shall result in
ineligibility for federal funding.
§5331(g).See footnote 2
On February 15, 1994, the Federal Transit Administration
(FTA), among other United States Department of Transportation
subagencies, issued final rules implementing the statute. See 49
C.F.R. pts. 653 and 654. Among other mandates, the rules require
recipients of federal funds, by January 1, 1995, to implement a
program of random alcohol and drug testing of employees who
perform the following safety-sensitive functions:
(1) Operating a revenue service
vehicle, including when not in
(2) Operating a nonrevenue service vehicle,
when required to be operated by a holder
of a Commercial Driver's License;
(3) Controlling dispatch or movement of a
revenue service vehicle;
(4) Maintaining a revenue service vehicle or
equipment used in revenue service . . .;
(5) Carrying a firearm for security
[49 C.F.R. §§ 653.7, 653.13(a), 653.47,
654.7, 654.15(a) and 654.35.]
Pursuant to the federal rules, the random testing must be
unannounced, and each time employees are selected for testing,
every employee must have an equal chance of being selected. 49
C.F.R. § 653.47(a), (c); 49 C.F.R. § 654.35(f), (g). During the
course of each year, at least 50" of the covered employees must
be randomly tested for drugs. 49 C.F.R. § 653.47(b)(2).
Initially, at least 25" of the covered employees must be randomly
tested for alcohol, with the minimum rate subject to adjustment
based upon industry results. 49 C.F.R. § 654.35(a) to (d).
Procedures for the collection and chain of custody of urine
specimens and the identification of the donor are described in 49
C.F.R. part 40.
Significantly, the rules expressly preempt, with the
exception of state criminal laws, any state or local law, rule,
regulation or order to the extent that compliance with both the
state or local requirement and any requirement of the rules is
not possible, or where compliance with the state or local
requirement is an obstacle to the accomplishment and execution of
any part of the rules. 49 C.F.R. §§ 653.9, 654.9. The pertinent
subsection of the statute provides:
A State or local government may not
prescribe, issue or continue in effect a law,
regulation, standard or order that is
inconsistent with regulations prescribed
under [the statute, except] a State criminal
law that imposes sanctions for reckless
conduct leading to loss of life, injury or
damage to property.
Under the terms of the Act, grantees are required to certify
their compliance to FTA initially by January 1, 1995, and
annually thereafter. 49 C.F.R. §§ 653.83(a), 654.83(a). The Act
provides that the failure of a recipient of federal financial
assistance for mass transportation to comply with the federal
provisions by enacting the required drug-testing policies will
result in the recipient's forfeiture of its right to receive
federal funds. 49 C.F.R. §§ 653.81(a), 654.81(a). In fiscal
year 1995, approximately $324 million of Transit's $1.2 billion
total capital and operating budget came from the FTA.
Faced with the prospect of losing federal funding, on
December 19, 1994, Transit published a document setting forth a
corporate-wide policy entitled "Drug And Alcohol-Free Workplace -- Core Policy" (Core Policy) that became effective on January 1,
1995, and which provides, in part, as follows:
This document outlines NJ TRANSIT's
policy to achieve a drug and alcohol-free
workplace. The purpose of this policy is to
ensure that NJ TRANSIT operates in the safest
and most efficient manner possible and to
promote the safety and welfare of our
employees and customers by creating a drug
and alcohol-free workplace and ensuring that
our employees are free from the effects of
drugs and alcohol.
. . . NJ TRANSIT's goal to achieve a drug and
alcohol-free workplace shall be accomplished
through the implementation of a comprehensive
anti-drug and alcohol program based on
deterrence, detection, assistance, and
enforcement. The program objectives in
support of this goal are to prevent drug and
alcohol abuse, to assist employees who seek
help, to detect drug and alcohol abuse, and
to enforce NJ TRANSIT's policy.
Section VII of this document is entitled "Drug and Alcohol
Test" and provides the following:
A. As Part Of Voluntary Periodic Medical Examinations (Physicals)
Management Physicals - A management
physical is a voluntary periodic
physical available to non-agreement
employees who meet certain
qualifying criteria. All employees
who qualify for this examination
will be required to sign a form
reflecting their consent to drug
and alcohol tests.
B. Reasonable Suspicion
This section only applies to
employees NOT covered by Addenda I
1. An employee is required to
submit to an alcohol and/or drug
test when a supervisor has
reasonable suspicion, based on
articulable observations concerning
the appearance, behavior, speech or
body odors of the employee, to
believe that the employee has
engaged in any of the behaviors
prohibited by this policy
concerning the use of alcohol
Transit's document entitled "Drug and Alcohol-Free Workplace
Policy -- Addendum I" similarly became effective on January 1,
1995.See footnote 3 The articulated purpose of Addendum I is as follows:
This document outlines those requirements of
NJ TRANSIT's Drug and Alcohol-Free Workplace
Policy which are applicable only to NJ
TRANSIT employees who perform safety-sensitive functions as defined herein. As
such, this document supplements and is to be
read and applied with reference to NJ
TRANSIT's Drug and Alcohol-Free Workplace -
Significantly, Addendum I defines covered employee as "a
person, including a volunteer, applicant, or transferee, who
performs a safety-sensitive function." Addendum I explains that
the phrase "performing a safety-sensitive function" includes
those periods "in which an employee is actually performing, ready
to perform, or immediately available to perform such a function."
Section IV of Addendum I provides that all Transit employees,
including supervisory personnel, and volunteers who perform
safety-sensitive functions are subject to the testing
requirements, which are based on the requirements of the FTA. In
addition, this section provides that "[e]mployees who perform
safety-sensitive functions are required to be tested for drugs
and/or alcohol in the following circumstances: pre-employment,
reasonable suspicion, post-accident, random, return-to-duty, and
follow-up." (Emphasis added.)
Section IX of Addendum I is entitled "Random Unannounced
Testing," and provides, in pertinent part:
A. All employees who perform safety-sensitive
functions are subject to random, unannounced
drug and alcohol testing.
B. Employee numbers shall be in a pool from
which random selection is made. Employees
shall be selected by a computer-based random
number generator that is matched with the
employee's employee number. All employees in
the random pool shall have an equal chance of
being selected for testing and shall remain
in the pool even after being tested.
Therefore, it is possible for some employees
to be tested several times in one year.
C. At various times throughout the year,
employees shall be randomly selected for
unannounced drug testing. Once the employee
has been notified that he has been selected
for testing, he must report immediately to
the collection site.
On April 26, 1995, plaintiff filed a complaint against
Transit with the Superior Court of New Jersey, asserting that
those provisions of Transit's drug and alcohol policy that
mandate the random testing of law enforcement personnel
represented by the PBA constitute an illegal search and seizure
and "violates the prescriptions of Article I, Section [sic] 7 of
the New Jersey State Constitution." Plaintiff requested, interalia, the following relief:
(A) Finding that the random testing provision
of New Jersey Transit's drug and alcohol
policy, insofar as it relates to the random
acts of testing of law enforcement personnel
represented by PBA Local 304, is
unconstitutional in consideration of the
prescriptions of Article I, Section [sic] 7
of the New Jersey State Constitution;
(B) Requiring that New Jersey Transit
Authority amend its drug and alcohol policy
so as to establish that law enforcement
personnel represented by PBA Local 304 shall
not be subject to any random drug testing;
(C) Voiding the results of any random drug
tests conducted of law enforcement personnel
represented by Transit PBA Local 304 which
would include the reinstatement of any
suspended or terminated personnel who were
the subject of any random drug tests.
Plaintiff did not challenge those portions of Transit's policy
that require drug testing for police officers who undergo annual
physical examinations, nor did it question the constitutionality
of those portions of the policy that provide for drug testing
upon reasonable individualized suspicion.
On May 3, 1995, at a hearing on application by plaintiff for
an order to show cause, the Honorable Alvin Weiss considered the
federal and state cases addressing the constitutional issues
surrounding the administration of drug tests. He concluded:
I think in considering the sensitive nature
of law enforcement work and people who carry
guns, and in today's society where violence
seems to be a common denominator[,] that the
defendant in this case has a right to require
its police officers who carry guns to take
random drug tests to make sure that they are
. . . "Clean." I, therefore, will deny the
application for a restraining order by the
On May 23, 1995, Judge Weiss entered a final judgment in
which he denied plaintiff's application for an order to show
cause and both a temporary and permanent restraining order,
thereby rendering the decision a final judgment. In so doing, he
determined that, based upon the evidence
submitted, there is no genuine issue as to
any material fact in the case, that an
evidentiary hearing is therefore unnecessary,
and that defendant is entitled to judgment as
a matter of law; [a]nd . . . that plaintiff's
challenge is not federally preempted but that
defendant's testing comports with the New
On appeal, plaintiff argues that: (1) there is substantial
New Jersey judicial precedent to support its contention that the
establishment of random, unannounced testing within Transit's
Drug and Alcohol-Free Workplace Policy is unconstitutional in
light of the prescriptions of article I, paragraph 7 of the New
Jersey Constitution; and (2) the trial court failed to properly
apply the balancing test utilized in the past by the Appellate
Division in determining whether the random drug testing of
transit police officers violated the prescriptions of article I,
paragraph 7 of the New Jersey Constitution.
In pertinent part, our State Constitution directs that
[t]he right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated; and no warrant shall
issue except upon probable cause, supported
by oath or affirmation, and particularly
describing the place to be searched and the
papers and things to be seized. [N.J. Const.
art. I, ¶ 7.]
The Fourth Amendment to the United States Constitution is
virtually identical to the foregoing provision.
Preliminarily, we note that the Fourth Amendment's
prohibition against unreasonable searches and seizures extends to
those carried out by public officials. Allen v. County of
219 N.J. Super. 352, 358 (Law Div. 1986) (citing New
Jersey v. T.L.O.,
469 U.S. 325, 333-34,
105 S. Ct. 733, 739-40,
83 L. Ed.2d 720, 729 (1985)); seealsoVernonia School Dist. 47J
v. Acton, 515 U.S., ___,
115 S. Ct. 2386, 2390,
132 L. Ed.2d 564, 573-74 (1995).
Furthermore, it has been firmly established by both federal
courts and our state courts that "a governmentally compelled
taking of urine is both a `search' and a `seizure' within the
meaning of the constitutional provisions." Fraternal Order of
Police, Newark Lodge No. 12 v. City of Newark,
216 N.J. Super. 461, 466 (App. Div. 1987); seealsoNational Treasury Employees
Union v. Von Raab,
489 U.S. 656, 665,
109 S. Ct. 1384, 1390,
103 L. Ed.2d 685, 701 (1989); Skinner v. Railway Labor Executives'
489 U.S. 602, 617,
109 S. Ct. 1402, 1413,
103 L. Ed.2d 639, 660 (1989); Rawlings v. Police Dept. of Jersey City,
133 N.J. 182, 188 (1993), O'Keefe v. Passaic Valley Water Comm'n,
132 N.J. 234, 242 (1993); Caldwell v. New Jersey Dept. of
250 N.J. Super. 592, 608 (App. Div.), certif.
127 N.J. 555 (1991); International Fed'n of Professional
& Technical Eng'rs, Local 194A v. Burlington County Bridge
240 N.J. Super. 9, 14 (App. Div.), certif. denied,
122 N.J. 183 (1990); Allen v. County of Passaic, supra, 219 N.J.
Super. at 357. Consequently, such a test
must meet the reasonableness requirement of
the Fourth Amendment, National Treasury
Employees Union v. Von Raab,
489 U.S. 656,
109 S. Ct. 1384, 1390,
103 L. Ed.2d 685, 701-02 (1989), which "`depends on all
the circumstances surrounding the search or
seizure [drug test],'" Skinner v. Railway
Labor Executives' Ass'n,
489 U.S. 602, 619,
109 S. Ct. 1402, 1414,
103 L. Ed.2d 639, 661
(1989) (quoting United States v. Montoya de
473 U.S. 531, 537,
105 S. Ct. 3304, 3308,
87 L. Ed.2d 381, 388 (1985)).
[Rawlings v. Police Dept. of Jersey City,
supra, 133 N.J. at 188 (alteration in
Thus, the issue herein is not whether the test set forth in
Transit's policy constitutes a search and seizure, but rather
whether the test, which is clearly a search and seizure, is
unreasonable in light of established constitutional
Despite the fact that the search and seizure provisions
contained within the New Jersey and United States constitutions
are virtually identical, "our state constitution has been found
to afford greater protection against unreasonable searches and
seizures than may be required by the United States Supreme
Court's interpretation of the Fourth Amendment." Fraternal Order
of Police, supra, 216 N.J. Super. at 477; seealsoState v.
114 N.J. 329, 351 (1989); State v. Novembrino,
105 N.J. 95, 145 (1987); State v. Hunt,
91 N.J. 338, 370-72 (1982); State
253 N.J. Super. 227, 232 (App. Div. 1992); Caldwell
v. New Jersey Dept. of Corrections, supra, 250 N.J. Super. at
609; International Fed'n of Professional & Technical Eng'rs,
Local 194A, supra, 240 N.J. Super. at 16. Thus, our analysis
will begin by addressing the current position of our courts with
regard to the constitutionality of random, unannounced drug
To date, New Jersey courts have refused to permit random,
unannounced drug testing of employees without the minimal
safeguard of a reasonable individualized suspicion that the
employee was engaging in drug use. Due to the frequency with
which state courts addressing the issue have cited Shoemaker v.
608 F. Supp. 1151 (D.N.J. 1985), aff'd,
795 F.2d 1136 (3d
Cir.), cert. denied,
479 U.S. 986,
107 S. Ct. 577,
93 L. Ed.2d 580 (1986), our analysis begins with a discussion of Shoemaker
and the cases which have extended its reasoning into the area of
law enforcement officers.
In Shoemaker, supra, the plaintiffs, licensed jockeys in New
Jersey, had brought an action under
§1983, seeking a
preliminary injunction to restrain the enforcement of two
regulations adopted by the New Jersey Racing Commission which
provided for the administration of random breathalyzer and urine
tests to licensed jockeys. 608 F. Supp. at 1154. The plaintiffs
alleged that these regulations violated the rights guaranteed by
the Fourth, Fifth, and Ninth Amendments and the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the
United States Constitution. Id. at 1155. In regard to the
alleged violations of the Fourth Amendment, the plaintiffs
specifically argued that the administration of these drug tests
subjected jockeys to unreasonable searches and seizures. Ibid.
In upholding the regulations, the United States District
Court for the District of New Jersey began by noting the
exception to the warrant requirement that has been carved out for
the search of premises in closely regulated industries pursuant
to an administrative inspection scheme. Id. at 1155. Although
it was clear to the district court that the New Jersey horse-racing industry was closely regulated, the question that was
presented was whether the administrative search exception extends
to the warrantless testing of not only premises but also persons
engaged in the regulated activity. Id. at 1156. The district
court concluded that the "plaintiffs fail[ed] to demonstrate that
the Racing Commission's breathalyzer testing and urinalysis
program is not closely tailored to further the state's legitimate
interest in reducing the use of alcoholic beverages and drugs,
thereby promoting the safety and integrity of horse racing and
protecting the public." Id. at 1157.
In affirming the decision of the district court, the United
States Court of Appeals for the Third Circuit noted the existence
of two interrelated requirements that justify the warrantless
administrative search exception.
First, there must be a strong state interest
in conducting an unannounced search. See
[Donovan v. Dewey,
452 U.S. 594, 600,
Ct. 2534, 2539,
69 L. Ed.2d 262, 270
(1981)]. Second, the pervasive regulation of
the industry must have reduced the
justifiable privacy expectation of the
subject of the search. Id. Both these
requirements are present in the warrantless
testing of persons involved in the New Jersey
horse racing industry.
2d at 1142.]
The Third Circuit reasoned that New Jersey has a strong interest
in assuring the public of the integrity of the persons engaged in
the horse-racing industry.Id. at 1142.
Subsequently, other courts have displayed a willingness to
apply the administrative search exception to police officers by
reasoning that police officers represent members of a highly
regulated industry. For instance, McDonell v. Hunter,
809 F.2d 1302, 1304 (8th Cir. 1987), arose from a class action suit
challenging the constitutionality of an Iowa Department of
Corrections policy which subjected the correctional institution
employees to searches of their vehicles and persons, including
urine, blood or breath testing, upon the request of department
officials. In regard to urinalyses, the court held that, when
properly administered, the testing procedure
is not as intrusive as a strip search or a
blood test. While the prison officials have
. . . [a] legitimate interest in maintaining
prison security . . ., the infringement upon
the privacy interest of correctional
institution employees, already diminished, is
lessened. Officials have a legitimate
interest in assuring that the activities of
those employees who come into daily contact
with inmates are not inhibited by drugs or
alcohol and are fully capable of performing
[Id. at 1308.]
In McDonell, the United States Court of Appeals for the
Eighth Circuit cited Shoemaker, and held that "[w]e 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." Id. at 1308. The court thereafter held
that "urinalyses are not unreasonable when conducted for the
purpose of determining whether corrections employees are using or
abusing drugs which would affect their ability to safely perform
their work within the prison, `a unique place fraught with
serious security dangers.'" Ibid. (citation omitted). Armed
with this reasoning, the court concluded that urinalyses may be
performed uniformly or by systematic random selection of those
employees who have regular daily contact with the prisoners.
More recently, in Policemen's Benevolent Ass'n of New
Jersey, Local 318 v. Township of Washington,
850 F.2d 133, 134
(3d Cir. 1988), cert. denied,
490 U.S. 1004,
109 S. Ct. 1637,
104 L. Ed.2d 153 (1989), the defendant township appealed from a
summary judgment in favor of the plaintiff which represented a
police officer in a suit challenging the defendant's drug-testing
policy on Fourth Amendment grounds. The plan implemented by the
defendant called for both reasonable suspicion and random
testing. Id. at 135. In approving the defendant's plan, the
Third Circuit relied upon Shoemaker. Id. at 136. The court
cited the numerous statutes and regulations to which the members
of the police department are already subject. The court
thereafter noted that "[t]hese statutes and regulations speak for
themselves. They establish that the police industry is probably
the most highly regulated, with respect to performance of its
employees, of any industry in New Jersey." Id. at 141; seealsoBolden v. Southeastern Pa. Transp. Auth.,
953 F.2d 807, 822 (3d
Cir. 1991), cert. denied,
504 U.S. 943,
112 S. Ct. 2281,
Ed.2d 206 (1992); Ford v. Dowd,
931 F.2d 1286 (8th Cir. 1991);
Penny v. Kennedy,
915 F.2d 1065 (6th Cir. 1990); Weicks v. New
Orleans Police Dep't,
706 F.Supp. 453, 461 (E.D. La. 1988),
868 F.2d 1269 (5th Cir. 1989).
Earlier decisions of state courts in New Jersey have refused
to allow random drug testing of police officers. SeeAllen v.
County of Passaic, supra, 219 N.J. Super. at 380, ("The
appropriate standard to be applied in situations involving
Sheriff's officers and corrections officers is that of reasonable
suspicion."). In Fraternal Order of Police, supra, the
plaintiffs appealed from a decision of the Law Division which
sustained a directive issued by the City of Newark Police
Director ordering all members of the Narcotic Bureau to be
subjected to urine testing for drug abuse at least twice a year.
216 N.J. Super. at 462. The directive was issued in response to
the Police Director's concern with possible drug abuse among
members of the Police Department and also with the public
perception of drug abuse among police officers. Id. at 464. The
Director's concern was based on his "`awareness of the extent and
seriousness of the problem of drug abuse in society in general,
and in Newark in particular, as well as the results of recent
urine testing of Police Department recruits'" which had revealed
the presence of unlawful substances in several recruits. Ibid.
The tests were intended to deter drug use and, thus, advance the
interests of public safety and effective law enforcement. Ibid.
In reversing the decision of the Law Division in that case,
this court began by noting the principle that
a search or seizure based upon a warrant
supported by probable cause is "presumed to
be valid" (State v. Valencia,
93 N.J. 126,
133 (1983)), and that a warrantless search is
"primafacie invalid unless it comes within
one of the specific exceptions to the warrant
requirement" of the constitutional
provisions. State v. Young,
87 N.J. 132, 141
(1981). SeeKatz v. United States,
389 U.S. 347, 357,
88 S. Ct. 507, 514,
19 L. Ed.2d 576 (1967).
[Id. at 466-67 (footnote omitted).]
The defendant, relying upon Shoemaker, supra, had sought to
bring the proposed testing within the "pervasively regulated
industry" exception to the warrant requirement, which permits
certain warrantless searches and seizures without either probable
cause or individualized suspicion. Id. at 468. This court
recognized that although administrative searches, i.e., those
conducted to enforce a regulatory scheme, are subject to the
Fourth Amendment and therefore commonly require the issuance of a
warrant, searches of private commercial property utilized in a
pervasively regulated industry may be inspected without a warrant
and without individualized suspicion. Ibid. Moreover, those
"[p]ersons associated with such an industry, may also be
subjected to a warrantless search, at least while on the
commercial premises." Ibid. (citing In re Martin,
90 N.J. 295,
Nonetheless, this court concluded that police officers are
not associated with a highly-regulated industry. Id. at 469. In
so concluding, we reasoned:
Like many other groups of public employees,
police officers are subject to a variety of
statutory and administrative controls. But
government's supervision of its employees
cannot be equated with the regulation of
sensitive industries requiring "close
supervision and inspection." See, e.g., In
re Martin, 90 N.J. at 312-313. Police are
not engaged in a "commercial enterprise" (cf.
Donovan, 452 U.S. at 599, 101 S. Ct. at
2538); they are not subject to a
"comprehensive and defined" regulatory scheme
in which drug testing is a "necessary
component" (Id. at 600, 101 S. Ct. at 2538);
there has been no legislative determination
"that warrantless searches are necessary to
further a regulatory scheme[.]" (Ibid.). To
treat the police as a "pervasively regulated
industry" would dangerously extend and
distort that exception to the warrant
requirement beyond its intended scope. We
thus find ourselves in agreement with the
many courts which have found Shoemaker
inapplicable to or distinguishable from cases
involving public employees.
[Fraternal Order of Police, supra, 216 N.J.
Super. at 469 (alteration in original).]
This court held that because the searches and seizures
contemplated by the Police Director's memorandum failed to come
within a specific exception to the warrant requirement, the
memorandum was primafacie invalid. Id. at 470. This court
concluded that urinalyses conducted without reasonable
individualized suspicion were not a proper means to curb drug
abuse among, and enhance public confidence in, members of the
police department. Id. at 475. That conclusion was reinforced
by referring to the Attorney General's guidelines promulgated in
1986, which, as noted above, similarly require the existence of
reasonable suspicion. Id. at 475-76.
The application of this court's decision in Fraternal Order
of Police, supra, would appear to preclude Transit from
implementing the proposed drug-testing policy here at issue. Not
only do we disagree with its principal holding that police
officers are not members of a "highly-regulated industry," 261
N.J. Super. at 469, we also find outdated the conclusion reached
therein that the city directive mandating that all members of the
narcotic bureau be subjected to urine testing for drug abuse
without probable cause or reasonable individualized suspicion
violated the state constitutional prohibition against
unreasonable searches and seizures, id. at 478. We are
thoroughly convinced that police officers are members of a
"highly-regulated industry." Furthermore, our upholding of the
constitutionality of Transit's drug-testing policy is compelled
both by the deteriorating conditions of society with respect to
drug abuseSee footnote 4 and subsequent federal decisions.
The two principal United States Supreme Court cases
addressing the constitutional implications of drug testing of
employees are Skinner v. Railway Labor Executives' Ass'n, supra,
489 U.S. at 606, 109 S. Ct. at 1407, 103 L. Ed.
2d at 652-53 and
National Treasury Employees Union v. Von Raab, supra, 489 U.S. at
665, 109 S. Ct. at 1390, 103 L. Ed.
2d at 701. Notably, both of
these cases were decided after this court's decision in Fraternal
Order of Police; thus, these cases clearly provide a basis for
upholding the constitutionality of Transit's Drug and Alcohol-Free Workplace Policy. Skinner, supra, arose out of the promulgation by the Federal
Railroad Administration (FRA) of regulations which mandated the
administration of blood and urine tests to employees who were
involved in certain train accidents, as well as to employees who
violated certain safety rules. 489 U.S. at 606, 109 S. Ct. at
1407, 103 L. Ed.
2d at 652-53. In adopting these regulations,
the FRA was responding to evidence which indicated that on-the-job intoxication was a significant problem in the railroad
industry. Id. 489 U.S. at 607, 109 S. Ct. at 1407-08, 103 L. Ed.
2d at 653. The United States Court of Appeals for the Ninth
Circuit invalidated the majority of the regulations, concluding
that particularized suspicion was essential to a judicial finding
that toxicological testing of railroad employees was reasonable.
Id. 489 U.S. at 613, 109 S. Ct. at 1411, 103 L. Ed.
2d at 657.
In reversing the judgment of the Ninth Circuit, the United
States Supreme Court acknowledged that "chemical analysis of
urine, like that of blood, can reveal a host of private medical
facts about an employee"; indeed, the very process of collecting
a urine specimen implicates privacy interests. Id. 489 U.S. at
617, 109 S. Ct. at 1413, 103 L. Ed.
2d at 659-60. Thus, the
Court concluded, these intrusions must be deemed searches under
the Fourth Amendment. Id. 489 U.S. at 617, 109 S. Ct. at 1413,
103 L. Ed.
2d at 660.
The Court next undertook an analysis of whether such an
intrusion was unreasonable, explaining that in order to determine
whether a particular practice is permissible, courts must balance
the intrusion of that practice on the individual's Fourth
Amendment interests against its promotion of a legitimate
governmental interest. Id. 489 U.S. at 619, 109 S. Ct. at 1414,
103 L. Ed.
2d at 661. The Court recognized that a search or
seizure, except in limited and well-defined circumstances, is not
reasonable unless it is conducted in accordance with a judicial
warrant issued upon probable cause. Ibid. However, the Court
explained that when there exist "special needs" beyond the normal
ones for law enforcement which render the warrant and probable-cause requirement impracticable, "we have not hesitated to
balance the governmental and privacy interests to assess the
practicality of the warrant and probable cause requirements in
the particular context." Id. 489 U.S. at 619, 109 S. Ct. at
1414, 103 L. Ed.
2d at 661.
Armed with these principles, the Supreme Court held that the
governmental interest in regulating the conduct of railroad
employees to ensure safety presents special needs above and
beyond routine law enforcement which potentially justify
departures from the usual warrant requirements. Id. 489 U.S. at
620, 109 S. Ct. at 1415, 103 L. Ed.
2d at 661-62. The Court
likened this governmental interest to the interest implicated by
the supervision of regulated industries and prisoners on
probation, and the operation of government offices, schools, and
The Court reasoned that the employees covered by the FRA
regulations include persons engaged in safety-sensitive jobs.
Id. 489 U.S. at 620, 109 S. Ct. at 1415, 103 L. Ed.
2d at 662.
The Court noted that the reason the FRA prescribed toxicological
tests was not to assist in the prosecution of employees but
rather to prevent accidents caused by the impaired performance of
employees under the influence of alcohol or drugs. Id. 489 U.S.
at 620-21, 109 S. Ct. at 1415, 103 L. Ed.
2d at 662 (citing 49
CFR § 219.1(a) (1987)). The need to ensure the safety of both
the traveling public and the employees themselves clearly
justifies regulations prohibiting covered employees from engaging
in alcohol or drug use while on duty or even while subject to
being called for duty. Id. 489 U.S. at 621, 109 S. Ct. at 1415,
103 L. Ed.
2d at 662.
The Court then explained that the remaining consideration is
whether the Government's need to monitor compliance with these
restrictions justifies the privacy intrusions at issue in the
absence of a warrant or individualized suspicion. Id. 489 U.S.
109 S. Ct. 1415, 103 L. Ed.
2d at 662-63. The Court
declared that the "Government's interest in dispensing with the
warrant requirement is at its strongest when, as here, `the
burden of obtaining a warrant is likely to frustrate the
governmental purpose behind the search.'" Id. 489 U.S. at 623,
109 S. Ct. at 1416, 103 L. Ed.
2d at 663 (quoting Camara v.
Municipal Court of San Francisco,
387 U.S. 533,
87 S. Ct. 1727,
18 L. Ed.2d 930 (1967)).
The Court recognized that even a search that may be
performed without a warrant must be based, as a general matter,
on probable cause to believe that the person to be searched
violated the law. Even when the balance of interests militates
against a showing of probable cause, the Court has usually
required a measure of individualized suspicion before upholding
the reasonableness of a search. Id. 489 U.S. at 624, 109 S. Ct.
at 1417, 103 L. Ed.
2d at 664. However, the Court went on to
explain that "[i]n limited circumstances, where the privacy
interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would
be placed in jeopardy by a requirement of individualized
suspicion, a search may be reasonable despite the absence of such
suspicion." Id. 489 U.S. at 624, 109 S. Ct. at 1417, 103 L. Ed.
2d at 664.
The Court stated that the intrusions occasioned by blood
tests and breath tests were not significant. Id. 489 U.S. at
625-26, 109 S. Ct. at 1418, 103 L. Ed.
2d at 665. The Court
admitted that urine tests presented a more difficult question
since the procedures for collecting the necessary specimens,
unlike the procedures utilized for breath or blood tests, require
employees to perform an excretory function usually shielded by
great privacy. Id. 489 U.S. at 626, 109 S. Ct. at 1418, 103 L.
2d at 666. However, the Court was satisfied that these
concerns had been mitigated by the promulgation of regulations
tailored to reduce the intrusiveness of the collection process.
Significantly, the Court found that covered employees had
diminished expectations of privacy by virtue of their
participation in an industry that is highly regulated to ensure
safety, a goal which depends, in large part, on the health and
fitness of covered employees. Ibid. Moreover, where covered
employees are engaged in tasks so fraught with enormous risks of
injury to others that even a momentary lapse in concentration can
have disastrous results, the Government interest in testing
without a showing of individualized suspicion becomes quite
compelling. Id. at 489 U.S. at 628, 109 S. Ct. at 1419, 103 L.
2d at 667.
The Court reasoned:
Much like persons who have routine access to
dangerous nuclear power facilities, see,
e.g., Rushton v. Nebraska Public Power Dist.
844 F.2d 562, 566 (CA8 1988); Alverado v.
Washington Public Power Supply System,
111 Wash 2d 424, 436,
759 P.2d 427, 433-434
(1988), cert pending, No. 88-645, employees
who are subject to testing under the FRA
regulations can cause great human loss before
any signs of impairment become noticeable to
supervisors or others.
[Id. 489 U.S. at 628, 109 S. Ct. at 1419, 103
2d at 667.]
Under such circumstances a requirement of particularized
suspicion of drug and alcohol use would create serious
impediments to an employer's ability to identify impaired
employees or to obtain information about the causes of major
accidents. Id. 489 U.S. at 631, 109 S. Ct. at 1420, 103 L. Ed.
2d at 668. Thus, since the compelling Government interests
served by the FRA's regulations would be significantly hampered
by requiring railroads to indicate specific facts giving rise to
a reasonable suspicion of impairment before testing a covered
employee, the Court in Skinner abandoned the reasonable suspicion
standard under the facts there at issue. Id. 489 U.S. at 633,
109 S. Ct. at 1421-22, 103 L. Ed.
2d at 670.
In National Treasury Employees Union v. Von Raab, supra, a
case decided by the United States Supreme Court on the same day
as Skinner, the Commissioner of the United States Customs
Service, following the report of a Drug Screening Task Force
which concluded that urinalyses provided a technologically
reliable, valid and accurate method of drug screening, had
announced his intention to require drug tests of employees who
applied for or occupied certain positions within the service.
489 U.S. at 660, 109 S. Ct. at 1384, 103 L. Ed.
2d at 698. Drug
tests were made a condition of placement or employment for
positions that met one or more of three criteria, which included
carrying firearms. Id. 489 U.S. at 660-61, 109 S. Ct. at 1388,
103 L. Ed.
2d at 699. The Court affirmed so much of the judgment
of the United States Court of Appeals for the Fifth Circuit as
upheld the testing of those employees directly involved in drug
interdiction or who were required to carry firearms. However,
the Court vacated the judgment to the extent it upheld the
testing of applicants for positions requiring the incumbent to
handle classified materials. Id. 489 U.S. at 664-65, 109 S. Ct.
at 1390, 103 L. Ed.
2d at 701.
In reaching its decision in Von Raab, the Court 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."
Id. 489 U.S. at 665, 109 S. Ct. at 1390, 103 L. Ed.
2d at 702.
The Court reiterated that Fourth Amendment intrusions where they
serve special governmental needs beyond those for law enforcement
necessitate a balancing of the individual's privacy expectations
against the Government's interests to determine whether the
requirement for a warrant or some level of individualized
suspicion is impractical in the particular circumstance. Id. 489
U.S. at 665-666, 109 S.Ct. at 1391, 103 L.Ed.
2d at 702.
The Court acknowledged that "[e]ven where it is reasonable
to dispense with the warrant requirement in the particular
circumstances, a search ordinarily must be based on probable
cause." Id. 489 U.S. at 667, 109 S.Ct. at 1392, 103 L.Ed.
703. The Court pointed out that "the probable-cause standard `is
peculiarly related to criminal investigations.'" Id. 489 U.S. at
667, 109 S. Ct. at 1392, 103 L. Ed.
2d at 703. (citation
The Court recognized "that the Government has a compelling
interest in ensuring that front-line interdiction personnel are
physically fit, and have unimpeachable integrity and judgment."
Id. 489 U.S. at 670, 109 S. Ct. at 1393, 103 L. Ed.
2d at 705.
Moreover, the Court declared that
[t]he public interest likewise demands
effective measures to prevent the promotion
of drug users to positions that require the
incumbent to carry a firearm, even if the
incumbent is not engaged directly in the
interdiction of drugs. Customs employees who
may use deadly force plainly "discharge
duties fraught with such risks of injury to
others that even a momentary lapse of
attention can have disastrous consequences."
Railway Labor Executives, ante, at 628,
103 L. Ed.2d 639,
109 S. Ct. 1402.
[National Treasury Employees Union, supra,
489 U.S. at 670, 109 S. Ct. at 1393, 103 L.
2d at 705.]
Thus, in both Skinner and VonRaab, the Court held that
individualized reasonable suspicion was not an indispensable
prerequisite for a public employer to conduct drug tests of its
The question that remains, therefore, is whether, in light
of the United States Supreme Court's decisions in these two
cases, New Jersey courts should re-evaluate their assessment of
the constitutional implications of random drug testing of police
officers who perform safety-sensitive functions.
In International Federation of Professional & Technical
Engineers, Local 194A, supra, we held that the drug testing of
public employees physically involved in the opening and closing
of bridges which cross the Delaware River may be conducted as
part of an annual physical examination. This court's holding was
based on scrutiny of the totality of circumstances, including the
nature of the employees' work, and the non-random nature of the
test, i.e., the test was to be administered during the employee's
annual physical examination. 240 N.J. Super. at 11.
In reaching our conclusion, we distinguished the tests
involved in Fraternal Order of Police,supra, and Allen v. County
of Passaic, supra, explaining that in those two cases the tests
were to be conducted at random, whereas the tests then before us
were part of a routine annual physical examination. Id. at 17.
We further explained that a scheduled test is less objectionable
than a random test since employees have a reduced expectation of
privacy as to the former, which thus renders the testing only
minimally intrusive. Id. at 17. A much greater privacy interest
is involved in a random testing situation. Id. at 24-25. We also recognized that as a result of Skinner and Von Raab,
nothing in federal constitutional law prevents requiring public
employees whose duties implicate the safety of the public to
undergo a urinalysis, particularly during an annual or regularly
scheduled physical exam, even absent a reasonable suspicion that
the tested individuals were drug users. Id. at 22. We added:
"[T]he drug testing must serve some `special needs' of the
employing governmental body, rather than being designed to gather
evidence for a criminal prosecution. Even if the `special need'
appears, the individual's privacy interest must be balanced
against the public employer's interest." Id. at 22.
Thus, in International Federation of Professional &
Technical Engineers, Local 194A, we distinguished random testing
from other drug testing procedures. However, while we continued
to endorse the view that random drug testing imposed greater
constitutional concerns, we acknowledged that
[i]n cases where the public safety depends on
the fitness of employees, courts have
recently upheld even random drug tests. See,
e.g., Harmon v. Thornburgh, [
878 F.2d 484
(D.C. Cir. 1989), cert. deniedsubnom.Bell
v. Thornburgh, ____ U.S. ____,
110 S. Ct. 865,
107 L. Ed.2d 949 (1990)]; Rushton v.
Nebraska Public Power Dist.,
653 F. Supp. 1510 (D. Neb. 1987) aff'd
844 F.2d 562, 566-567 (
8 Cir. 1988) (upholding random [drug]
testing of nuclear power plant workers, given
the great potential for danger and resulting
lowered expectation of privacy).
It appears insignificant that the
initial May, 1986 drug screen may be deemed
"random." The governing "balancing test" now
appears to be the same for "random" as well
as post-accident (Skinner) or "pre-ascension"
(Von Raab) type drug testing.
[International Federation of Professional &
Technical Engineers, Local 194A, supra, 240
N.J. Super. at 23.]
In Hennessey v. Coastal Eagle Point Oil Co.,
247 N.J. Super. 297, 306 (App. Div. 1991), aff'd,
129 N.J. 81 (1992), a case
involving an employee of a private oil company who was discharged
following a positive drug test, we observed that the vitality of
our decision in Fraternal Order of Police,supra, despite its
reliance on the New Jersey Constitution, was diluted by Skinner
and Von Raab. In affirming our decision in Hennessey, supra, the
New Jersey Supreme Court took note of the United States Supreme
Court cases decided after Fraternal Order of Police, 129 N.J. at
105. The Court stated that "[w]e agree that the combination of
the impracticality of less-intrusive means of detecting drug use
and the urgent need to ensure public safety renders urine testing
a permissible method of preventing drug use among employees in
safety-sensitive jobs." Id. at 106. However, the Court
emphasized the continued need to protect employee privacy and
thus urged employers to formulate and implement procedures
designed to minimize the intrusiveness of the testing process.
Ibid. The Court concluded that "[b]ecause the safety-sensitive
nature of [the plaintiff's] employment raises the potential for
enormous public injury, the public policy supporting safety
outweighs any public policy supporting individual privacy
rights." Id. at 107.
Nonetheless, while Hennessey provides some useful language,
it did not specifically involve the issue of the drug testing of
police officers. In Rawlings v. Police Dept. of Jersey City,
133 N.J. 182, the Court was asked to consider whether the
defendant violated the Fourth and Fifth Amendment rights of the
plaintiff, a police officer, by directing him to submit a urine
sample for mandatory testing pursuant to a departmental order
that required officers to submit to testing on individualized
reasonable suspicion that the officer had unlawfully used drugs.
Id. at 185. The plaintiff refused to obey the order following
his arrest on suspicion of possessing and distributing cocaine.
Id. at 185-86. The Court held that the challenged order was
designed to prevent unlawful drug use by police officers and
served special governmental needs. Id. at 189. Thus, our
Supreme Court recognized the fact that the dangerous nature of a
police officer's position requires special consideration in
assessing the constitutionality of a drug-testing program. The
Court believed that particularized suspicion effectively balanced
the Fourth Amendment rights of the police officer and the
interests of the department in conducting a drug test. Id. at
191. Because the order explicitly required the existence of
individualized reasonable suspicion, the Court did not need to
reach the issue of whether drug-testing without individualized
suspicion would contravene plaintiff's Fourth Amendment
protections. Id. at 190. However, the Court did note that the
United States Supreme Court in VonRaab and Skinner had relaxed
the Fourth Amendment protection sufficiently to obviate the
requirement for individualized suspicion. Id. at 190.
In O'Keefe v. Passaic Valley Water Commission, supra,
132 N.J. 234, the plaintiff challenged a written policy implemented
by the defendant which required all applicants for employment to
submit to a drug test and afforded the defendant the right to
refuse to hire any person who refused to submit to such a test.
The plaintiff asserted that the defendant refused to hire him as
a water-meter reader because he would not take the test. He
argued that the defendant's policy violated both the Fourth
Amendment of the United States Constitution and article I,
paragraph 7 of the New Jersey Constitution. Id. at 236.
Although the New Jersey Supreme Court concluded that the
issue of the constitutionality of the program was rendered moot,
it nevertheless took the opportunity to address the problems that
plague employment-related drug-testing cases. Id. at 242. In so
doing, the Court, again citing the United States Supreme Court
decisions of Skinner and VonRaab, set forth a framework within
which to analyze the constitutionality of drug-testing programs
that is useful to the present analysis. The Court stated that
"[a]fter determining whether a special need exists, a court must
then balance the applicant's or employee's privacy interests
against those of the government employer in administering the
drug-testing program." Id. at 243. Thus, our Supreme Court
advocates the balancing test endorsed by the United States
Supreme Court in Skinner and Von Raab.
In applying such a balancing test herein, the government's
need to conduct random, suspicionless searches outweighs the
privacy interests of the covered employees -- here, employees who
carry a firearm for security purposes -- to such a degree that it
is impractical to require either a warrant or a measure of
individualized suspicion. SeeVon Raab, supra, 489 U.S. at 665-66, 109 S. Ct. at 1391, 103 L. Ed.
2d at 702. In this case, the
special governmental need of protecting the public from the risk
posed by officers who are impaired by drugs or alcohol cannot be
Moreover, the regulations promulgated by Transit endeavor to
minimize the intrusiveness of the urine collection process. SeeSkinner, supra, 489 U.S. at 626-27, 109 S. Ct. at 1418, 103 L.
2d at 666. Furthermore, our Supreme Court has acknowledged
that a police officer has a diminished expectation of privacy due
to the nature of his employment. Rawlings v. Police Dep't of
Jersey City, supra, 133 N.J. at 189-90.
We recently had the opportunity to address the Skinner/Von
Raab balancing test in upholding the constitutionality of two
statutes, N.J.S.A. 2A:4A-43.1 and N.J.S.A. 2C:43-2.2. Those
statutes require serological testing for AIDS and HIV of
defendants charged with certain sexual offenses upon request of
the victim. SeeState of New Jersey ex rel J.G., N.S. and J.T.,
_____ N.J. Super. ___ (App. Div. 1996). In our decision we
acknowledged the devastating impact a report of infection may
have on a defendant, id. (slip op. at 16), but found that,
applying the Skinner/Von Raab balancing test, the individual
defendant's interest in preventing a bodily intrusion and
disclosure of his or her HIV status is significantly less weighty
than the compelling state interest in the health and welfare of
the victim in particular and the public in general, id. (slip op.
The employees here involved, by virtue of the risks inherent
in their jobs and the split-second decisions they are required to
make, have the potential "to cause great human loss before any
signs of impairment become noticeable to supervisors or others."
SeeSkinner, supra, 489 U.S. at 628, 109 S. Ct. at 1419, 103 L.
2d at 667. The regulations which are the subject of this
appeal apply only to Transit police officers who carry firearms;
therefore, those regulations are minimally intrusive. Based upon
a balancing test, this glaring potential for harm, when
considered against the backdrop of the other factors noted above,
supports the constitutionality of Transit's drug-testing policy.
We need not determine whether the judgment of the trial
court could be sustained based upon the United States
Constitution, Article I, Section 8, Clause 3 (the Commerce
Clause) or Article VI, Clause 2 (the Supremacy Clause).
Footnote: 1 Later in 1991, the Urban Mass Transportation Act was
amended and its name changed to the Federal Transit Act. Pub. L.
102-240, § 3003(b).Footnote: 2 In pertinent part,
§5331(g) states that "[a]
person is not eligible for financial assistance under section
5307, 5309 or 5311 of this title or section 103(e)(4) of title 23
if the person is required, under regulations the Secretary of
Transportation prescribes under this section, to establish a
program of alcohol and controlled substances testing and does not
establish the program."Footnote: 3 Addendum II delineates those requirements of Transit's
Core Policy which are applicable only to Transit employees who
perform Rail covered service. Under the terms of Addendum II,
all such employees "are subject to random, unannounced drug and
alcohol testing."Footnote: 4 Judge Weiss, in upholding the constitutionality of
Transit's Drug and Alcohol-Free Workplace Policy, noted a recent
incident in the Essex County Courts Building where a police
officer who was about to testify in a drug-related case was
assassinated outside of the courtroom. Later it became common
knowledge that an autopsy of the police officer disclosed that
that officer was taking drugs. Judge Weiss also noted that the
New York Times has recently reported major investigations in
various precincts in New York because of drug use by police