The opinion of the court was delivered by: BRAZIL
BRAZIL, United States Magistrate Judge.
Plaintiff Teresa Hansen was subjected by her employer, the California Department of Corrections (CDC), to drug testing involving direct visual observation of urination. Hansen is suing the CDC, its director at the pertinent time, the warden of the facility in which she worked, and the officers who administered the drug testing, alleging violations of the Fourth Amendment, the federal constitutional right to bodily privacy, and the California Constitution's right to privacy. Defendants claim immunity under both federal and California law. Both sides have filed cross-motions for summary judgment.
While we believe that the U.S. Constitution probably prohibits direct observation of urination during drug testing absent reasonable, individualized, and articulable suspicion of an intent to tamper with the urine sample, we grant summary judgment to defendants regarding Hansen's federal claims on qualified immunity grounds, for the law governing Hansen's federal claims was not "clearly established" at the time defendants' conduct took place.
When we reach the merits, we find that defendants' drug testing procedures violated the California Constitution's right to privacy. We therefore grant summary judgment on the issue of liability (as opposed to the amount of damages) on Hansen's California law privacy claim against the two defendants found not to be immune.
Hansen is a female CDC correctional officer stationed at a correctional facility called CTF-Soledad (Soledad). See Defendant's Statement in Opposition to Plaintiff's Statement of Undisputed Material Facts (DSO) P 1. In addition to CDC, Hansen is suing four CDC officers in their official and individual capacities: James Gomez, CDC's director at the time the drug testing giving rise to this action took place; Daniel Vasquez, Soledad's warden during some of the time that the drug testing took place; Edward Russell, an investigative captain at Soledad at the time of the drug testing; and Robert Kim, a sergeant at Soledad at the time of the drug testing. DSO P 3.
Hansen has been employed by CDC for more than eight years. DSO P 1. Hansen has regular contact with inmates; one of her responsibilities is supervising a work crew of about ten inmates. Hansen Dep. at 229.
In October 1993, Hansen revealed to Russell, the investigative captain, that she had used marijuana (in an off-duty setting) on one occasion during the time she was employed at CDC and that she had used cocaine on several occasions many years earlier, before the beginning of her employment at CDC. DSO PP 6-8. CDC took an "Adverse Action" against Hansen, which, among other disciplinary measures, required Hansen to submit to random drug testing for a one-year period. DSO P 10. Hansen signed an agreement to voluntarily submit to random drug testing from January 18, 1994, through January 18, 1995. DSO P 11. This agreement provided that the drug testing would be conducted in accordance with guidelines set forth in the collective bargaining agreement between CDC and the correctional employees' union. DSO P 11.
The collective bargaining agreement in question, referred to by the parties as the Memorandum of Understanding (MOU), contains the following provision:
During the term of this agreement, the State agrees to study the need to retain direct observation of the employee providing the urine sample, and will meet and confer with CCPOA [the employees' union] upon completion of the study, or upon CCPOA request. The State and CCPOA may also mutually agree to modify this section in response to new technology or other improved procedures.
See Plaintiff's Response to Defendants' Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment (PRD) P 39 (emphasis added). The MOU does not contain any other provision that alludes to direct observation of drug testing. See Defendants' Response to Plaintiff's Statement of Additional Undisputed Material Facts in Opposition to Defendants' Motion for Summary Judgment (DRP) P 4.
In the negotiations of the MOU, the employees' union objected to direct visual observation of urination during drug testing, threatened to sue CDC if direct observation continued, and never explicitly agreed to direct observation. DRP PP 1-3. Defendants have presented evidence that would support an inference that the union negotiators understood, at the time the MOU was signed, that the CDC intended to continue using direct observation of urination during drug testing of prison employees, even though there was no provision in the MOU expressly authorizing such direct observation. DRP P 4.
After the first drug test, Hansen discussed her objection to the direct observation, as well as other concerns about the drug testing procedure, with a union representative. The union representative discussed Hansen's objections with Vasquez, the warden. Rafferty Decl. at 2. Vasquez communicated with a superior, CDC's acting regional administrator, who told him that CDC policy requires direct frontal observation. Vasquez Dep. at 19-20, 45. The record before us does not disclose what, if anything, Vasquez did with this information. We have not seen evidence, for example, that Vasquez then communicated to Russell and/or Kim that they were to make sure that direct observation remained a part of the testing of plaintiff.
After the first drug test, Kim and Russell discussed (with one another) Hansen's objections to direct observation, but did not consider making an attempt to have the direct observation policy changed. Russell Dep. at 39-40. Hansen underwent additional drug tests on April 5, May 26, July 12, and August 19, 1994. DSO P 22. In each of these drug tests, Hansen's urination was directly observed by a female monitor. DSO P 23.
Vasquez, Russell, and Kim each testified in depositions that CDC policy requires direct observation of urination during drug testing of employees. PRD PP 25, 36. Each of these three defendants also testified that their implementation of the drug testing procedures used on Hansen was in accordance with that policy. PRD P 36. Each of the three also testified that they believed that a written policy exists which requires direct observation. Kim Dep. at 34-38; Russell Dep. at 18; Vasquez Dep. at 17.
No written policy about direct observation has been presented to this court; we do not know whether defendants have turned over such a policy to plaintiff. There is evidence in the record suggesting that, at the time of the events at issue, there was a statewide California Department of Personnel Administration (DPA) policy requiring direct observation of urination during employee drug testing. See Russell Dep. at 18.
Vasquez testified that the direct observation policy was probably communicated to him some time before Hansen's drug testing began. Vasquez Dep. at 17. Vasquez testified that the drug testing of Hansen was conducted under his authority. Vasquez Dep. at 36. Plaintiff and defendants agree that Vasquez and CDC director Gomez are responsible for implementing the policies of the CDC. DRP P 5. However, there is no evidence in the record that Vasquez ever directly instructed Russell or Kim that CDC policy requires direct observation of employee urine testing or that direct observation should be used when testing Hansen. In addition, Gomez's deposition has not been taken, and there is no evidence in the record as to whether Gomez played a role in the formulation of the direct observation policy or whether Gomez only implemented a policy set by the DPA.
In October of 1994 Hansen filed a complaint for damages and injunctive relief against CDC, Gomez, Vasquez, Russell, Kim, and another defendant who has since been dismissed from the suit. The complaint names Gomez, Vasquez, Russell, and Kim in both their official and their individual capacities. The complaint contains seven claims: (1) a damages claim under 42 U.S.C. § 1983 (1988) based on an unlawful search; (2) a damages claim under 42 U.S.C. § 1983 based on a violation of the federal constitutional right to bodily privacy; (3) a damages claim under 42 U.S.C. § 1983 based on failure to train or supervise; (4) a damages claim under California law based on a violation of the California Constitution's right to privacy; (5) a California common-law intentional infliction of emotional distress claim; (6) a California common-law negligent infliction of emotional distress claim; and (7) a request for temporary and permanent injunctive relief.
In November of 1995 defendants filed a motion for summary judgment, and plaintiff filed a cross-motion for partial summary judgment. Defendants argue that summary judgment should be granted to them on Hansen's federal claims on the grounds of qualified immunity, or, alternatively, because the federal claims are substantively without merit. Defendants also argue that California statutory immunity law bars Hansen's California law claims. Defendants further contend that the Eleventh Amendment bars Hansen's claims against the individual defendants in their official capacities, as well as Hansen's California law claims against CDC. In addition, defendants contend that the Eleventh Amendment and California statutory law bar a punitive damages claim by Hansen against CDC. Finally, defendants argue that Hansen's claim for injunctive relief is moot.
Hansen moves for summary judgment on the issue of liability on each of her three federal claims. She also moves for summary judgment on the issue of liability on her California law privacy claim.
A. Qualified Immunity Law -- Generally
1. Is the Defense of Qualified Immunity Potentially Available to All Four of the Individual Defendants?
Under the doctrine of qualified immunity "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). According to Foster v. McGrail, 844 F. Supp. 16, 23 (D. Mass. 1994), "precedents . . . support a . . . meaning for 'discretionary function' that includes not only a high level decision formulating a directive but also lower level administration of the directive, at least when some discretion must be exercised in the administration and enforcement."
In this case, however, the record indicates that defendants Vasquez, Russell, and Kim did not exercise any discretion in requiring direct observation of Hansen's urine test, but were merely following a policy set at a higher level. The record is silent about whether defendant Gomez exercised any discretion in requiring direct observation during all CDC employee drug testing or whether he only implemented a policy handed down to him by the DPA.
We believe that the correct rule of law in such a situation is that a public official should be immune from liability for non-discretionary acts performed in good faith pursuant to a policy instituted by higher authorities unless a reasonable official would have known that the policy was unconstitutional. Two published opinions support this proposition.
In Gonzalez v. Tilmer, 775 F. Supp. 256, 258 (N.D. Ill. 1991), a police officer detained a suspect for forty-eight hours without a determination of probable cause. A general order of the city police department permitted such long detention under the circumstances at issue. Id. at 265. Though the police department's policy was later declared unconstitutional, the court granted immunity to the police officer. Id. at 265-66. The court explained that "an officer who is following a statute or administrative rule should generally be accorded qualified immunity for his actions unless a reasonable officer should have known that the law or rule in question was unconstitutional." Id. at 266 (citing Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir. 1988)).
These opinions are supported by the common-sense notion that, absent some assured statutory protection from another source, it would be unfair to subject an official to liability for following orders or policies which he has no authority, under the terms of his employment, to alter or ignore -- unless, of course, a reasonable official should have known that the orders or policies offended established law. Moreover, exposing officials to liability in such situations could give them incentives not to follow directives given by superiors. This would be bad public policy because it could hamper the smooth and effective operation of government. Cf. Scheuer v. Rhodes, 416 U.S. 232, 241-42, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) ("public officials . . . who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices") (emphasis added).
For these reasons, we hold that all four individual defendants are immune if a reasonable official would not have known that applying the direct observation policy in the circumstances of this case would violate clearly established law.
2. What Does the Phrase "Clearly Established" Mean in This Setting?
Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), provides detailed guidance for ascertaining whether law is "clearly established" for purposes of qualified immunity. In Anderson, the Court explained that "the operation of [the 'clearly established'] standard . . . depends substantially upon the level of generality at which the relevant 'legal rule' is to be identified." Id. at 639. If the "clearly established" standard were to permit rights which officials are accused of violating to be described in overly general terms, officials would not receive immunity in some situations where a reasonable official would not have known that the plaintiff's rights were violated. Id. For this reason, the Court set forth the following test for determining whether a right is clearly established for qualified immunity purposes:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Id. at 640 (citations omitted) (emphasis added).
On a number of occasions the Court of Appeals for the Ninth Circuit has elaborated on how to correctly apply the rule set out in Anderson. "A right can be clearly established even though there is no binding precedent in this circuit." Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir. 1989), cert. denied, 493 U.S. 1057, 107 L. Ed. 2d 951, 110 S. Ct. 867 (1990). "'The law simply does not require that we find a prior case with the exact factual situation in order to hold that the official breached a clearly established duty.'" Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995) (quoting Alexander v. Perrill, 916 F.2d 1392, 1397 (9th Cir. 1990)). "Thus, when 'the defendants' conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts' that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)).
"Government officials are charged with knowledge of constitutional developments, including all available decisional law." Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988), cert. denied, 490 U.S. 1075, 104 L. Ed. 2d 650, 109 S. Ct. 2087 (1989). However, the Ninth Circuit does not "require of most government officials the kind of legal scholarship normally associated with law professors and academicians." Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987).
With these principles in mind, we turn to an examination of whether qualified immunity bars Hansen's claim that she is entitled to damages on the grounds that the direct observation of her urination was an unreasonable search under the Fourth Amendment.
B. The Fourth Amendment Claim
1. The Doctrinal Setting -- Generally.
The law generally governing the application of the Fourth Amendment to urine drug testing is set forth in two Supreme Court cases which were published on the same day, Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989).
In Skinner, a union challenged federal regulations providing for drug testing of railroad employees if they are involved in an accident, if they commit certain safety violations, or if there is reasonable suspicion of on-duty alcohol or drug use. 489 U.S. at 609-11. The Court first held that urine drug testing is a search under the Fourth Amendment. Id. at 617. The Court then stated that the Fourth Amendment prohibits only unreasonable searches, id. at 619, and went on to balance the Fourth Amendment privacy interests of employees against the government interests supporting drug testing. See id. at 619-33. The Court stated that employees who work in a highly regulated industry such as railroads have a diminished expectation of privacy, id. at 627, and upheld the challenged regulations. Id. at 633.
In Von Raab, the Court stated that "where a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement," such as public safety, "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." 489 U.S. at 665-66. The court "balanced the public interest" in the drug testing program challenged in the case "against the privacy concerns implicated by the [drug] tests." See id. at 679.
Under the guidance of these important Supreme Court precedents, lower federal courts have elaborated the controlling balancing analysis, refining our thinking about the magnitude of the various privacy interests that can be invaded by different approaches to testing, about factors affecting the reasonableness of expectations of privacy in different settings, about the relative importance of various governmental interests that testing can serve, and about how much those interests are likely to be advanced by particular testing regimens. As the cases have addressed new situations, it has become more apparent that the balancing test often is a subtle undertaking, requiring exercises of judgment and discrimination that are not always self-evident or self-executing -- and therefore not always predictable with confidence.
This is true, in part, because it often is difficult to know, in advance, how much weight (value) given judges will ascribe to competing interests, as well as what their views will be about how much a given governmental measure contributes toward the achievement of its purported ends. To some extent, these kinds of judgments are subjective and turn on the political values or perspectives of the judges. And it is not often that the courts are provided scientifically reliable studies that assess how well challenged governmental measures actually work (how much of the desired effect they deliver).
None of this is to say, of course, that governmental defendants will always enjoy qualified immunity whenever (1) the courts use a balancing test to resolve the issue in question and (2) at the time the challenged conduct occurred, the courts had not addressed, squarely, the lawfulness of that particular course of governmental action. In some settings, the outcome even of balancing tests will be fully foreseeable from the precedents. But in other settings, as here, the courts' use of this kind of analysis will reduce predictive certainty.
We also must bear in mind, from the outset, that not all judicial opinions lend themselves to only one rational interpretation or reading. As we shall see, below, some of the cases that are most important to our disposition of the qualified immunity defense in this action send some ambiguous messages -- leaving room for reasonable minds to disagree about their implications for situations not squarely addressed. In settings like these, we are constrained to try to identify the zones or ranges of reasonable interpretations of the cases -- and to reject a defendant's view of what the state of the law was (and what questions the law, fairly read, left open) only if that view is based on an interpretation of the authorities that falls fairly clearly outside that zone or range. Stated differently, if there are reasonable, not insubstantial bases in the authorities for disagreement about what the law was or would be in the situation in the case at bar, we should not hold that the law was "clearly established." If, rationally, what the state of the law was is a close question, the law cannot be deemed "clearly established" for purposes of qualified immunity.
Another complicating factor about the area of doctrine we explore in detail below is the dynamic variability, in different settings, of the weights of the competing factors in the balancing analysis. While the courts uniformly recognize that, in the abstract, the privacy interest invaded by direct observation of urination is of great magnitude, they also acknowledge that how much privacy employees can legitimately expect can vary considerably from job to job or situation to situation. Thus, under the authorities, the same governmental act can result in a deep invasion of privacy for a person with one set of legitimate expectations but a much lesser invasion for a person whose situation reasonably gives rise to appreciably lower expectations of privacy. As a result, the extent of the harm to the privacy interest (i.e., the weight of the interests on the plaintiff's side of the scales) can vary dramatically with the relative sensitivity of the job that the plaintiff holds.
Similarly, the weight of the interests on the government's side of the scales is not static, but can vary considerably. It can be dramatically affected, for example, by the same relative sensitivity of the plaintiff's job. It also can grow or shrink with the presence or absence of reasonable suspicion -- and with the relative firmness of the basis for such suspicion. Moreover, there can be at least three separate targets of reasonable suspicion: (1) drug use on the job, (2) drug use off the job, and (3) that the employee will tamper with the urine sample or otherwise try to compromise the reliability of the drug testing. Thus the predictability of doctrinal development is further clouded by the fact that the pertinent balancing analysis could be affected by so many variables, as well as the fact that the weights of some of the variables are interdependent (in some settings, an increase in the weight of one variable necessarily results in a reduction in the weight of a competing variable).
In the sections that follow, we review first the case law that favors plaintiff's position on the immunity issue, then the case law that favors the position taken by the defendants. The spirit or tone of the cases on which plaintiff relies most heavily, especially Judge Mikva's opinion in National Treasury Employees Union v. Yeutter, 287 U.S. App. D.C. 28, 918 F.2d 968 (D.C. Cir. 1990), is clearly inhospitable, generally, to direct observation of urination during drug testing. But neither that case nor any other confronts squarely the situation in the case at bar: where the government could try to justify the direct observation on the basis of both reasonable suspicion of drug use by a specific employee and the fact that she worked in a clearly sensitive position. Thus, at the time of the drug tests that plaintiff challenges here, there were no literally controlling authorities. Moreover, as we shall see, there was language in even the most favorable opinions that arguably left the door open to approval of direct observation in situations like the one at bar. When, against this backdrop, we add to the doctrinal mix the cases that appear to favor the defendants' position, we simply cannot conclude that the right that plaintiff contends was violated by the direct observation was "clearly established."
2. Case Law Favoring the Plaintiff's Position.
The case on which plaintiff relies most in support of her argument that defendants violated clearly established Fourth Amendment rights is Yeutter, 287 U.S. App. D.C. 28, 918 F.2d 968. In that opinion, the Court of Appeals for the District of Columbia Circuit applied the balancing test that the Supreme Court prescribed in Skinner, 489 U.S. at 619-33, and Von Raab, 489 U.S. at 665-66. At issue in Yeutter were several components of a drug testing program in the Food and Nutrition Service (FNS) of the United States Department of Agriculture (USDA). One of these components subjected all FNS employees to reasonable suspicion drug testing and mandated direct observation of urination for all reasonable suspicion drug testing (regardless of the level of sensitivity of the job of the particular employee). Yeutter, 918 F.2d at 972, 975.
The court struck down this component of the drug testing program, stating that it could "discern no weighty government interest in observation that counter-balances its intrusion on employee privacy." Id. at 975. The court noted that alternative procedures exist which are less intrusive but still are effective in preventing cheating on drug testing. Id. at 976.
The court rejected the argument implicit in the USDA's testing program that reasonable suspicion of drug use is sufficient by itself to create reasonable suspicion that the tested employee will attempt to tamper with the sample. Id. at 976-77. The court ordered the district court to "enjoin appellees from requiring visual observation of urination whenever an employee is ordered to undergo reasonable suspicion testing, and from authorizing observation of urination during reasonable suspicion drug tests absent an individualized determination that visual monitoring is warranted." Id. at 977. The court stated, "It is implicit in our holding . . . that indications of drug use sufficient to warrant reasonable suspicion testing will not necessarily establish a legitimate need to observe urination in all instances." Id. at 976 (emphasis added).
The limited nature of the emphasized language, and several other features of the Yeutter opinion, could lead a reasonable person to conclude that Yeutter does not compel the conclusion that direct observation in the circumstances challenged by the plaintiff in the case at bar would offend the Fourth Amendment. Our goal here, of course, is not to identify what we believe is the most accurate reading of Yeutter, or to identify the most likely implications of that case for the situation at bar. Rather, our goal is to determine whether rational (and legally informed) minds could conclude, in light of that opinion, that the question we face in Ms. Hansen's case arguably remained open.
This portion of the Yeutter decision demonstrates that the balancing analysis used to measure the validity of drug testing programs under the Fourth Amendment tolerates greater intrusions on privacy for employees in "sensitive" occupations. See also Von Raab, 489 U.S. at 677-78 (upholding challenged drug testing program with regard to some occupations, but remanding for further factual development in order to determine whether employees in other occupations had sufficient access to sensitive information to justify application of the drug testing program to them). It is not clear that Yeutter or the balancing analysis used to measure the validity of drug testing programs would necessarily prohibit a direct observation policy for reasonable suspicion testing if that policy was applicable only to "sensitive" occupations.
The Yeutter court also noted that "the Supreme Court 'has quite clearly eschewed an approach to drug testing based on bright lines.'" 918 F.2d at 972 (citing Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 490 n.9 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990)). This statement may militate against a conclusion that Yeutter clearly established a bright-line rule prohibiting in all contexts direct observation of urination without individualized reasonable suspicion of an intent to tamper with the sample. In addition, the Yeutter court acknowledged that there appeared to be tensions between the Supreme Court's opinions in Skinner, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402, and Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384, with regard to the legality of direct observation of urination. See Yeutter, 918 F.2d at 976. These tensions will be discussed in detail below.
Hansen's argument that the direct observation of her urination was contrary to the Fourth Amendment is aided by a D.C. Circuit case which followed Yeutter, Piroglu v. Coleman, 306 U.S. App. D.C. 392, 25 F.3d 1098 (D.C. Cir. 1994), cert. denied, 130 L. Ed. 2d 1062, 115 S. Ct. 1093 (1995). But like Yeutter, Piroglu does not necessarily compel the ...