Drug War

Rick Scott's Thirst for Urine Will Remain Unslaked


Yesterday a federal judge ruled that Florida Gov. Rick Scott's order subjecting all executive-branch employees to random drug testing violates the Fourth Amendment's ban on "unreasonable searches and seizures." U.S. District Judge Ursula Ungaro said Scott had failed to demonstrate a "compelling interest" in demanding the urine of every state employee working under him:

The [executive order] does not identify a concrete danger that must be addressed by suspicionless drug-testing of state employees, and the Governor shows no evidence of a drug use problem at the covered agencies….

All of the upheld drug-testing policies [in Supreme Court cases] were tailored to address a specific, serious problem. In contrast, the rationale for the Governor's policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace….

Unlike the programs [upheld by the Supreme Court], which were moored to concrete dangers, the Governor's program is detached from any readily apparent or demonstrated risk….

It is this general and essentially speculative interest that the Court must weigh against the individual privacy interests of those subject to the [executive order]….

The fundamental flaw of the [executive order] is that it infringes privacy interests in pursuit of a public interest which, in contrast to the concrete and carefully defined concerns in [the relevant Supreme Court cases], is insubstantial and largely speculative….The privacy interests infringed upon here outweigh the public interest sought.  

There is nothing at all surprising about this decision. As I pointed out last year, Scott's order was clearly unconstitutional under the relevant precedents:

In two 1989 cases, the Supreme Court ruled that government-mandated urinalysis, although a "search" governed by the Fourth Amendment, can be justified without "particularized suspicion" in special circumstances. Specifically, the Court upheld testing ofrailroad employees who are involved in accidents or violate safety rules and  customs agents who apply for positions that require them to carry guns or interdict drugs. In two subsequent cases, the Court upheld random drug testing of high school students who participate in sports or other extracurricular activities, again based on a "special need": preventing drug use by minors. By contrast, in 1997 the Court rejected a Georgia law requiring all candidates for public office to undergo drug testing, ruling that it "does not fit within the closely guarded category of constitutionally permissible suspicionless searches."

Based on these precedents, U.S. District Judge Robert Hinkle in 2004 overturned a Florida drug testing policy that was much narrower than Scott's, applying to employees of the state Department of Juvenile Justice (DJJ). Hinkle began his opinion (PDF) by noting that "DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees." He noted that Roderick Wenzel, the DJJ employee who brought the case after he was fired for refusing to surrender his bodily fluids, was "a long-term strategic planner who worked in an office, did not interact with juveniles in DJJ's care, and did not access confidential information on juveniles." Hinkle concluded that the department had failed to show "a concrete risk of real harm" that would justify suspicionless testing of employees like Wenzel.

After Scott issued his order, ACLU of Florida Executive Director Howard Simon said, "I'm not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn't care." Can't it be both?

Scott, by the way, claims "drug testing state employees is a common-sense means of ensuring a safe, efficient and productive work force," which is "why so many private employers drug test." Not so. For a closer look at that question, see my 2002 Reason article "Urine—or You're Out."

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  1. Best headline of the year.

  2. You know, Scott looks like an astronaut to me for some reason. I have no idea why.

    1. They seem to like the penis with ears look.

    2. That’s funny. We had a guy who was actually an astronaut doing something where I work for a little while last year and he looked sort of like that too.

    3. Reminds you of Buzz Aldrin, maybe? A little bit, in general looks?

  3. You can’t fool me, that’s Matt Frewer.

  4. You who else allgedly had an insatiable thirst for urine?

    1. Howard Hughes?

    2. Gandhi?

    3. Patches O’Houlihan?

  5. “All of the upheld drug-testing policies [in Supreme Court cases] were tailored to address a specific, serious problem.”

    I don’t believe this given how many employers test potential hires. The grocery store I frequent tests all prospective hires; they have a sign on the wall that tells me so. What “specific, serious problem” do cashiers create if they get high on their day off. I call bullshit.

    1. Not an agent of the State.

    2. Of all the dumb drug testing programs they have approved, the testing for school athletes has to be the dumbest. What’s better, a kid who experiments with drugs from time to time, but is on the football team and involved with other wholesome activities, or a kid who discovers drugs, then gets kicked off the team and other school activities? You’d think they’d want to make a special effort to keep kids who are doing drugs involved in other, more healthy or productive activities as well.

  6. The [executive order] does not identify a concrete danger that must be addressed by suspicionless drug-testing of state employees, and the Governor shows no evidence of a drug use problem at the covered agencies….

    Meaningless. The issue is not if drug-testing represents a solution to a seemingly non-existant problem. The issue is the State trying to impose a new requirement on employees ex post facto.

    There would be nothing wrong in requiring drug testing for new hires as long as the potential employee is made aware of the requirement before signing him or her up. To require it after the ink in the contract is dry and the papers filed is immoral and illegal – a violation of the principle on the sanctity of contracts.

    1. Several times I’ve had new conditions placed on my by my employers. Usually there were new non-disclosure rules and were always accompanied by a document that began, “In consideration of continued employment…”

      One time I took the document, carefully whited out several key words, xeroxed it, and signed and returned the result. I quit that job shortly after so they never knew that they required me to distribute all their precious IP.

      1. Yeah, I think that if your employment is “at will”, the employer can change the terms of employment any time (and the employee can quit any time). But most state workers have contracts, don’t they?

  7. these florida clowns…make that the state gop…also mandated welfare queens take pee tests. then they discovered (gasp) lower positives than the general public while spending mucho tax dollars…& whining about spending.

  8. Would it be okay if it was a law passed by the state legislature and not an executive?

  9. Do the state troopers count as executive branch employees? Color me not caring. If you’re going to have a war on drugs why don’t you make the agents of the state jump through hoops to keep their phony baloney jobs.

    1. I try to take a golden rule approach there. I respect everyone’s rights. Even those of fuckers who would curtail other people’s rights.

      1. There’s a corollary.

        As you do unto others, may be done unto you.

        If you’re a WODder, you should get piss tested twice a week, at your expense. If you’ve got nothing to hide. . . .

      2. But in this case only those who would have rights are the ones in government. I can’t bring myself to want give them a break over this.

  10. Ah, so the 4th amendment is suddenly back in force – when it protects gov’t employees.

    1. THIS.

      And Reason is celebrating govt employees getting extra rights the rest of us don’t have.

      Either accepting/continuing employment is a voluntary act or it is not. Make up your goddam minds, Reason.

  11. Do they drug test high school athletes in Florida?

  12. Only an illegal drug user would refuse to take a drug test…Rod Wenzel refused to take a drug test

    It is sad that a poorly written law allowed an illegal drug user to get away with his crimes.

    1. Not really.

      1. In Rod Wenzel’s case he is an illegal drug user

        1. Your reading comprehension is poor.

          It is sad that a poorly written law allowed an illegal drug user to get away with his crimes.

          I repeat: NOT REALLY. Did I put it in big enough letters for you to understand this time?

          1. Correct me if I am wrong in “my reading comprehension.” In your opinion, you think that it is no big deal to let an illegal drug user(Rod Wenzel) work the system because of a poorly written law.

            If that is the case then I hope you toke up every day in the office.

  13. failed to demonstrate a “compelling interest”

    Whart about “lost productivity”? Drug testing trade associations offer “evidence” that workplace drug use costs 100s of Billions in lost productivity.

  14. Does anyone else think Rick Scott was a Turtle in a previous life?


  15. Anyone who doesn’t support the Humane Society is a low life…Rod Wenzel believes that the Humane Society is “promoting misconceptions, misinformation and falsehoods to students.” What do you expect from someone who refuses to take a random drug test?

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