IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-50582

DIANE PIERCE,

Plaintiff-Appellee,

versus

DAVID SMITH; LOUIS BINDER,

Defendants-Appellants,

and

TEXAS TECH UNIVERSITY HEALTH

SCIENCE CENTER,

Defendant.

________________________________________________

Appeal from the United States District Court for the

Western District of Texas

________________________________________________

July 15, 1997

Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellee Dr. Diane Pierce (Dr. Pierce) brought this

suit against defendants-appellants Dr. David Smith (Dr. Smith) and

Dr. Louis Binder (Dr. Binder), claiming that appellants violated

her rights under the Fourth and Fourteenth Amendments when they, as

officials of the state medical residency program in which she was

enrolled, caused her to undergo a private urinalysis test for drugs

and submit the test results to program officials, by informing her

that she would be expelled from the program if she was not tested.2

The jury returned a verdict in favor of Dr. Pierce, awarding her

compensatory and punitive damages. Dr. Smith and Dr. Binder

appeal. We hold appellants are protected by qualified immunity and

accordingly reverse.

Facts and Proceedings below

Dr. Pierce was a medical resident in the emergency medicine

residency program at the Texas Tech University Health Science

Center (TTUHSC) in El Paso, Texas, from 1988 to 1991. Texas Tech

is a state institution. As part of her TTUHSC residency program,

Dr. Pierce served a two-month rotation at St. Joseph’s Hospital in

Pho enix, Arizona, during January and February of 1990, where she

trained with the trauma team in emergency medicine.

On February 22, 1990, a patient was admitted to the St.

Joseph’s emergency room with head injuries sustained after smashing

his head through the windshield of his car in an automobile

accident. The patient, who was under the influence of alcohol and

drugs, was extremely uncooperative and aggressive.

Dr . Dale Stannard, the attending physician on the emergency

service that day, ordered that a CAT scan be performed to determine

whether t he patient had suffered any internal head injury.

Hospital orderlies brought the patient to the CAT scan room and

placed him on the scan table. As part of the trauma team, Dr.

Pierce was called to the CAT scan room to see the p atient. When

she arrived, she noticed that the orderlies were having difficulty

restraining the patient on the table. Dr. Pierce tried to help and

as she leaned over the patient to tighten his restraints, he spat

in her face. Dr. Pierce, in her words, “hard slapped” the patient3

at least two times on his face.

Dr. Pierce, the only physician present, left the room to wash

off the saliva. When she returned, the nursing supervisor

forcefully escorted her out of the room, telling her to stay away

from the patient. Dr. Stannard, who was not present in the CAT

scan room when the incident occurred, was told by the night

supervisor that Dr. Pierce had “karate chopped” the patient. Later

on, however, Dr. Stannard learned that Dr. Pierce had actually

s lapped the patient. He believed that there was no cause to

discipline her.

The following day, Dr. Pierce was called in to see Dr. Raymond

Shamos, the acting trauma director at St. Joseph’s. The

adm inistrators at St. Joseph’s were upset by the incident and

wanted to promptly send Dr. Pierce back to TTUHSC in El Paso. Dr.

Shamos, however, felt such steps were unnecessary and instead

instructed Dr. Pierce to seek counseling with St. Joseph’s employee

counseling administrator. She underwent counseling and was allowed

to finish the remaining three days of her rotation at St. Joseph’s.

The counselor recommended that on her return to El Paso Dr. Pierce

“contact the University Psychiatric department to continue

counseling sessions.”

Dr. Smith, the residency director at TTUHSC a t the time,

learned of the incident through Pat Jones, the emergency medicine

department administrator, who told Dr. Smith that Dr. Pierce had

“beat up a patient” at St. Joseph’s. Dr. Smith began his own

investigation of the incident, wh ich included talking with Dr.4

Brian Nelson, who was chairman of the faculty at TTUHSC, and Dr.

Shamos. During Dr. Smith’s telephone conversation with Dr. Shamos,

Dr. Smith was told that Dr. Pierce had karate chopped the patient

in the neck. Later, Dr. Smith met with Dr. Binder, Associate

Professor in the Departme nt of Emergency Medicine at TTUHSC and

Assistant Dean, to discuss the incident. Due to incorrect

information received from St. Joseph’s, both Dr. Smith and Dr.

Binder thought that Dr. Pierce had karate chopped a patient and had

to be physically restrained from the patient. They discussed a

number of possible explanations for Dr. Pierce’s surprising

behavior, including drug use.

Upon Dr. Smith’s request, Dr. Pierce met with Dr. Smith in his

off ice on February 28. At that meeting, Dr. Smith handed Dr.

Pierce a letter and told her that she was being placed on

probation, with pay, pending an investigation into the incident.

This was not the first time Dr. Pierce had been on probation

in her TTUHSC residency. During the summer of 1989, she was placed

on probation for, among other reasons, excessive tardiness, poor

interpersonal relationship problems with the faculty and patients,

and failing t o carry an acceptable volume of patients. At that

time (in 1989), there was some discussion among the faculty members

that drug use might be the cause of Dr. Pierc e’s behavior. When

asked during 1989 by Dr. Nelson whether she was using drugs, Dr.

Pierce replied that she was not. Dr. Pierce was eventually taken

off this probation, and was not on probation when she slapped the

patient at St. Joseph’s.5

Dr. Smith also told Dr. Pierce in the February 28 meeting that

she would have to undergo psychiatric evaluations. On March 2, Dr.

Smith met with Dr. Pierce again, and told her that she would be

required to undergo two psychiatric e valuations. One evaluation

would be performed by a d octor selected by TTUHSC and the other

evaluation by a doctor selected by Dr. Pierce.

On that same day, Dr. David Smith contacted Dr. Robert Smith

about performing the evaluation on Dr. Pierce on behalf of TTUHSC.

Dr. Robert Smith agreed to do so. Dr. David Smith understood that

the evaluation would include a urine drug test.

Dr. David Smith met with Dr. Pierce for a third time on March

9. Dr. Pierce handed to Dr. Smith letters written by Dr. Stannard

and Dr. Shamos on her behalf, describing their accounts of what had

happened at St. Joseph’s and, specifically, correcting earlier

sto ries that Dr. Pierce had karate chopped the patient and

explaining that Dr. P ierce instead had slapped the patient three

times on the face. Dr. Smith brought these letters to the

attention of Dr. Binder and Dr. Nelson. However, the letters did

not cause the doctors to rule out drug use as a possible

explanation for Dr. Pierce’s conduct.

Dr. Pierce arrived at Dr. Robert Smith’s office on March 14 to

undergo her psychiatric evaluation. At that time, she was informed

by Dr. Robert Smi th that he had scheduled a urinalysis drug test

for their next appointment on March 17. Dr. Pierce objected to

taking the drug test, and went to speak with Dr. David Smith,

informing him of her objection to the urinalysis. Dr. David Smith1 A faculty meeting took place on March 20. It is unclear from

the record what transpired at this meeting; however, it does not

appear that the faculty officially approved or disapproved of the

urinalysis.

6 told her that he would bring the matter of the urinalysis up with

the faculty on March 20. 1 Dr. Pierce met with Dr. Robert Smith on

March 17, and she told himshe would likely refuse to take the

urinalysis test. Dr. Pierce next met with Dr. David Smith on March

19. Dr. Pierce testified that on this occasion Dr. David Smith

told her “if I didn’t take the urinalysis test, I’d be dismissed”

and “indicated that he had to be able to prove to Dr. Nelson

[TTUHSC faculty chairman] and Dr. Glass [a faculty member] that I

wasn’t using drugs.” Dr. Pierce did not indicate she would submit

to urinalysis, but did not definitely say she would not.

Nothing in the record suggests that either Dr. David Smith or

Dr. Binder, alone or in combination with each other, had or claimed

to hav e the authority to actually dismiss Dr. Pierce. The only

matter in the record speaking to this is the “Personnel Relations

& Disciplinary Action” attachment to the TTUHSC G raduate Medical

Education Program Agreement between TTUHSC and Dr. Pierce for the

period July 1, 1989, to June 30, 1990. This attachment provides

that the Program Director has the authority to recommend dismissal

to the dean of the Texas Tech medical school, “through” the TTUHSC

dean, who in 1990 was Dr. Joseph Brown (to whom Dr. Binder

reported), “for review and action.” It also provides that a

resident has the right to appeal a dismissal, with attendant due

process rights, and that compensation and benefits shall continue,2 Dr. Pierce selected Dr. Salo, a clinical psychologist, to

conduct the second psychiatric evaluation.

7 and certifying boards and medical associati ons shall not be

notified of the dismissal, during the appeal process.

Although she still would not commit to take Dr. Robert Smith’s

urinalysis test, on March 23 Dr. Pierce decided to take a

urinalysis drug test at an independent laboratory, Pathlab. After

receiving the results, which were negative, f rom the laboratory,

Dr. Pierce hand-delivered the report to Dr. David Smith on March

30, which he accepted in place of the urinalysis which had been

arranged for by Dr. Robert Smith. The evidence indicates, and

there is no evidence to the contrary, that prior to receiving this

report neither Dr. David Smith no r Dr. Binder nor anyone else at

TTUHSC (nor Dr. Robert Smith) had any indication that Dr. Pierce

intended to take ( or had taken) a urinalysis drug test,

independently or otherwise. On that same day, after reviewing the

urinalysis report and the psychiatric evaluations of Dr. Robert

Smith and Dr. Ann Sal o, 2 Dr. David Smith took Dr. Pierce off her

probation.

There is evidence that at some point after Dr. David Smith

first learned of the Phoenix incident and before March 20, but just

when is totally unclear, Dr. Binder recommended to Dr. David Smith

that Dr. Pierce undergo a drug test.

On February 24, 1992, Pierce filed this suit against Dr. David

Smith and Dr. Binder, seeking damages and declaratory relief

pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201 and the Fourth and8

Fourteenth Amendments to the United States Constitution. Her

claims included (1) taking of a property right without due process

of law by virtue of the suspension from her residency program; (2)

taking of a liberty interest by virtue of an unreasonable search of

her person; (3) violation of her right to equal protection by

virtue of her gender; and (4) intentional infliction of emotional

distress. The complaint was later amended to add TTUHSC as a

defendant, claiming that TTUHSC violated Dr. Pierce’s rights under

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-

1688 (Title IX).

All defendants moved for summary judgment. The court granted

the d efendants’ motion on all claims except the Fourth Amendment

clai m and the claim for intentional infliction of emotional

distress. The court refused to dismiss the complaint on summary

jud gment against the individual defendants on the basis of

qualified immunity.

The defend ants then filed their answer, again raising the

affirmative defense of qualified immuni ty as to the individual

defendants. Two days later, the court permitted the defendants to

supplement their earlier motion for summary judgment as to the

remaining claims. The court granted the defendants’ motion on the

inten tional infliction of emotional distress claim, but denied

summary judgment on the Fourth Amendment claim.

Over the defendants’ objections, the district court submitted

a jury instruction stating that, before a government employer may

compel an employee to undergo a drug test, the employer must have3 We address only Dr. Pierce’s Fourth Amendment claim against

Dr. Smith and Dr. Binder as she does not challenge the district

court’s dismissal of her other claims.

4 The failure to take an interlocutory appeal from the denial

of a pretrial motion to d ismiss or for summary judgment does not

waive the defense of qualified immunity. Matherne v. Wilson , 851

F.2d 752, 756 (5th Cir. 1988). S ee also Spann v. Rainey

, 987 F.2d

1110, 1114 (5th Cir. 1993).

9 individualized suspicion that the employee was using drug s. The

jury returned a verdict in favor of Dr. Pierce, awarding her

$ 30,000 actual damages against Dr. Smith and Dr. Binder, jointly

and severally; $10,000 punitive damages against Dr. Smith; and

$10,000 punitive damages against Dr. Binder.

The district court overruled the defendants’ motions for

judgment as a matter of law or for a new trial, and entered final

judgment on the verdict. The court also awarded Dr. Pierce

$31,153 .41 in attorney’s fees and expenses and $2,770.82 court

costs. Dr. Smith and Dr. Binder bring this appeal. 3

Discussion

I. Qualified Immunity; Standards and Review

Appellants argue on appeal that, as government officials, they

are entitled to qualified immunity. 4

A state official exercising discretionary authority whose

conduct deprives another of a right secured by federal

constitutiona l or statutory law is nonetheless shielded from

personal liability for damages under section 1983 by the doctrine

of qualified immunity, unless at the time and under the

circumstances of the challenged condu ct all reasonable officials

would hav e realized that it was proscribed by the federal law on5 In a section 1983 suit, the relevant law addressed for this

purpose is only the federal law the asserted violation of which

provides the basis for the claim sued on. In D avis v. Scherer

, 104

S.Ct. 3012, 3018-20 (19 84), the Supreme Court rejected the

proposition that conduct which violates the clear command of a state statute or regulation is not “‘objectively reasonable’” and

hence may not be shielded by “qualified immunity” in a section 1983

action. D avis makes plain that the “object ive reasonableness”

inquiry in section 1983 qualified immunity cases is addressed only

in respect to the federal constitutional right allegedly violated.

Id

. at 3019. The Court went on to observe that “[n]either federal

nor state officials lose their immunity by violating the clear

command of a statute or regulation

—— of federal or state law

—— unless

that statute or regulation provides the basis for the cause of

action sued upon.” Id . n.12.

10 which the suit is founded. See, e.g., Anderson v. Creighton , 107

S.Ct. 3034, 3038-3040 (1987). In order for qualified immunity to

be unavailable, at the time the challenged action occurred the

federal law proscribing it must have been clearly established not

only as an abstract matter but also “in a more particularized . .

. sense” such that “[t]he contours of the right” are “sufficiently

clear that a reasonable official would understand that what he is

doing violates that right.” Id . at 3039. For example, where the

complained of conduct is a law enforcement warrantless search of a

residence, qualified immunity turns not only on whether it was then

clearly established that such a search required probable cause and

exigent circumstances, but also on whether it was then “clearly

establ ished that the circumstances with which” the officer “was

confronted did not constitute probable cause and exigent

circumstances.” Id . Qualified immunity protects “‘all but the

plainly incompetent or those who knowingly violate the law.’”

Hunter v. Bryant

, 112 S.Ct. 534, 537 (1991) (quoting Malley v.

Briggs , 106 S.Ct. 1092, 1096 (1986)). 5Moreover, because the issue is one of objective reasonableness

in resp ect to whether the challenged action violated the

constitutional provision sued on, the defendant’s subjective

motivation and subjective belief as to the lawfulness of his

conduct or what facts justified it are irrelevant. A nderson at

3040 (“Anderson’s subjective beliefs about the search are

irrelevant”); M angieri v. Clifton

, 29 F.3d 1012, 1017 (5th Ci r

. 199 4) (“The subjective beliefs of [the officer-defendants] as to

what facts they relied upon in forming the probable cause to arrest

[plaintiff] are irrelevant to the objective reasonableness of their

actions”); Pfannstiel v. City of Marion , 918 F.2d 1178, 1187 (5th

Cir. 1990) (“even an of ficer who subjectively intends to act

unreasonably is entitled to immunity if his actions are objectively

reasonable”).

11 The issue of whether and when a right is clearly established

is typically treated as a question of law. Pfannstiel v. City of

Marion

, 918 F.2d 1178, 1183 (5th Cir. 1990). Likewise, to the

extent that the relevant discrete, historic facts are undisputed,

as they essentially are here, the question of the objective

reasonableness of the defendant’s conduct

—— i.e.

, whether at the time

and under the circumstances all reas onable officials would have

realized the particular challenged conduct violated the

constitutional provision sued on

—— is also a question of law.

Mangieri v. Clifton

, 29 F.3d 1012, 1015-1016 (5th Cir. 1994). S ee

also Hunter at 536-37 (whether under the circumstances a reasonable

officer could believe probable cause for arrest existed, thus

giving rise to qualified immunity, is a question of law); Blackwell

v. Barton

, 34 F.3d 298, 305 (5th Cir. 1994 ); United States v.

Basey , 816 F.2d 980, 988 (5th Cir. 1987) (reasonable suspicion).

Where, as here, a sectio n 1983 defendant pleads qualified

immunity and shows he is a g overnmental official whose position

in volves the exercise of discretion, the plaintiff then has the12

burden “to rebut this defense by establishing that the official’s

allegedly wrongful conduct violated clearly established law.”

Salas v. Carpenter

, 980 F.2d 299, 306 (5th Cir. 1992). We do “not

require that an official demonstr ate that he did not violate

clearly established federal rights; our precedent places that

burden upon plaintiffs.” Id

.

In Siegert v. Gilley

, 111 S.Ct. 1789 (1991), the Court stated

that in a qualified immunity case, “the first inquiry” is whether

the plaintiff has “failed to allege the violation of a clearly

established constitutional right.” Id . at 1793. Accordingly, as

explained in Meadowbriar Home for Children, Inc. v. Gunn , 81 F.3d

521, 530 (5th Cir. 1996):

“‘In assessing qualified immunity, we engage in a twostep analysis. First, we determine whether a plaintiff

has alleged the violation of a cl early established

constitutional right under the current state of the law.’

R.A.M. Al-Ra’id v. Ingle

, 69 F.3d 28, 31 (5th Cir. 1995).

‘Second, if the plaintiff has all e ged such a

constitutional violation, we decide whether this

defendant’s conduct was “objectively reasonable,”

measured by reference to the law as clearly established

at the time of the challenged conduct.’ I d

. at 31

(internal citations omitted).”

The first step will generally involve analysis at a higher level of

generality than the second, which focuses not only on the state of

the law at the time of the complained of conduct, but also on the

particulars of the challenged conduct and/or of the factual setting

in which it took place. Thus, for example, in an arrest case the

first step may be satisfied by finding that the law i s (and was)

clearly established in requiring probable cause; at the s econd

step, we assess whether the defendant, under the particular6 Likewise, in G unaca v. State

, 65 F.3d 467 (5th Cir. 1995), a

suit by an investigator for a district attorney’s office alleging

he was dismissed because of his political preferences contrary to

the First Amendment, we held the first step was satisfied by

Supreme Court decisions establishing that “the practice of

patronage dismissals ‘clearly infringes First Amendment

interests,’” id

. at 473, and then held at the second step that the

defendant was entitled to qualified immunity because it was also

established that there was “a class of public employees

. . . whose

First Amendment interests are outweighed by a governmental interest

in the employ ees’ political loyalty,” but “neither the Fifth

Circuit nor the Supreme Court had addressed the issue of political

patronage in the hiring or firing of investigators in district

attorneys’ offices, and neither had addressed an issue sufficiently

analogous.” I d

. at 474, 475. We resolved only the issue of

qualified immunity, not whether there was in fact a constitutional

violation. Again, there was no change in the relevant law between

the time of the complained of conduct and this Court’s decision.

13 circumstances, could have reasonably concluded that probable cause

was present. See, e.g., Hunter ; Anderson ; Blackwell . In none of

t hese cases was there any relevant change in the law between the

compl ained of conduct and the court’s decision; and, these

decisions plainly authorized denial of relief on the basi s of

qualified immunity without ultimately determining whether a

constitutional violation in fact occurred. 6

II. Fourth Amendment

A. Search

The Fourth Amendment, applicable to the states by virtue of

the Fourteenth Amendment, forbids governmental violation of “[t]he

right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, . . . .”

The Supreme Court has held that this guarantee extends to searches

and seizures not only by law enforcement authorities, but also by

government officials who conduct various civil activities. S ee,7 In C handler

, the Supreme Court held that the Fourth Amendment

proscribed a state statute which conditioned ballot eligibility on the candidate’s having undergone a urine test showing the absence

of drugs, notwithstanding that the urine sample could be provided

in the office of the candidate’s private physician and the test

results were first given the candidate, who controlled further

dissemination. It might be argued that C handler ’s holding that the

test taken there was one subject to Fourth Amendment constraints is

inapplicable here because, in contrast to the Chandler situation,

the private test Dr. Pierce underwent, and her disclosure to Dr.

Smith of its negative results, was not something that Dr. Smith, or

any other state official, had called for or anticipated (and Dr.

Pierce was not disciplined for failure to undergo the drug test

called for by Dr. Smith; nor did Dr. Smith or Dr. Binder have

authority to dismiss Dr. Pierce). We do not resolve this possible

question, but rather assume, arguendo

, that Dr . Pierce actually

underwent a search subject to Fourth Amendment constraints.

14 e.g., O’Conner v. Ortega, 107 S.C t. 1492, 1496 (1987) (state

hospital officials) ; New Jers ey v. T.L.O. , 105 S.Ct. 733, 739-40

(1985) (school officials).

It is clear that, under certain circumstances, the collection

and testing of urine by the government constitutes a search subject

to Fourth Amendment constraints. Chandler v. Miller , 65 U.S.L.W.

4243 (April 15, 1997); Vernonia School District 47J v. Acton , 115

S.Ct. 2386 (1995); S kinner v. Railway Labor Executives’ Ass’n

, 109

S.Ct. 1402, 1413-14 (1989); Treasury Employees v. Von Raab , 109

S.Ct. 1384, 1390 (1989); Aubrey v. School Bd. of Lafayette Parish

,

92 F.3d 316, 318 (5th Cir. 1996). 7

B. Non-law enforcement standards generally; Individualized

suspicion

As the Supreme Court said in Skinner

, “to hold that the Fourth

Amendment is applicable to” the instant drug test:

“is only to begin the inquiry into the standard governing

such intrusions . [citations] For the Fourth Amendment

does not pr oscribe all searches and seizures, but only

those that are unreasonable. [c itations] What is8 We note, however, that even in certain crime detection

contexts, the C ourt has found “special needs” obviating the

necessity for individualized reas onable suspicion. S ee, e.g., Michigan Department of State Police v. Sitz

, 110 S.Ct. 2481 (1990).

15 reasonable, of cou rse, ‘depends on all of the

circumstances surrounding the search or seizure and the

nature of the search or seizure itself.’ [citations]

Thus, the permissibility of a pa rticular practice ‘is

judged by balancing its intru sion on the individual’s

Fourth Amendment interests against its promotion of

legitimate governmental interests.’ [citations]” I d

. at

1414.

“In most criminal cases” this balancing of interests is struck

“in favor of the procedure described by the Warrant Clause of the

Fourth Amendment.” I d

. However, “where a Fourth Amendment

intrusion serves special governmental needs, beyond the normal need

for law enforcement” a more particularized balancing is necessary

to deter mine reasonableness and “neither a warrant nor probable

cause, nor, indeed, any measure of individualized suspicion, is an

indispensable component of reasonableness in every circumstance.”

Von Raab at 1390. As the Court recently said in C handler

, although

Fou rth Amendment reasonableness “ordinarily must be based on

individualized suspicion of wrongdoing,” nevertheless “exceptions

to the main rule are sometimes warranted based on ‘special needs,

beyond the normal need for law enforcement’ [citing Skinner at

1414]. When such ‘special needs’

— — concerns other than crime

detection

—— are alleged in justification of a Fourth Amendment

intrusion, courts must undertake a context-specific inquiry,

examining closely the competing private and public interests

advanced by the parties.” I d

. at 4245-46. 8 C f. Akhil R. Amar,

Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 784 n.10016

(1994) (“.

. . individualized suspicion makes sense as a

prerequisite for warrants, but it does not make sense as the test

for all searching and seizing

—— outsid e the criminal context, for

example”).

C. Special needs situations

“Special needs” for the se purposes have been found in a

variety of circumstances, including “[t]he Government’s interest in

regulating the conduct of railroad employees to ensure safety . .

. its supervision of probationers or regulated industries,

. . .

[and] its operation o f a government office . . . [or] school.”

Skinner at 1415. And in Von Raab such a “special need” was found

respecting drug testing of Customs Service employees who would be

required to either carry firearms or engage in drug interdiction,

the Court observing “the Government’s need to discover such latent

or hidden conditions, or to prevent their development, is

sufficiently compelling to justify the intrusion o n privacy

entailed by conducting such sear ches without a ny measure of

individualized suspicion.” I d

. at 1392 (emphasis added). This was

so despite the fact that there was “no perceived drug problem among

Customs employees.” Id . at 1395.

On the other hand, it is clear that where the “need” is in

e ssence simply “symbolic”

— — the desire to “project” a public

“image”

— — it is not a “special” need for these purposes. C handler

at 4248.

Plainly, this is a “special needs” case. It is clear that the

instant challenged search was “not designed to serve the ordinary9 Physicians are not immune to drug abuse. Dr. Briones,

appellants’ expert witness, a current and long-ti me member (and

f ormer chairman) of the El Paso County Medical Society commit tee

dealing with physician substance abuse, testified that drug use was indeed a problem among physicians. Also, one scientific study of

drug and alcohol ab use among physicians reflects that physicians

are more likely to use alcohol, benzodiazepine tranquilizers, and

opiate analgesics than their age and gender peers in the general

public. Hughes et al., P revalence of Substance Use Among U.S.

Physicians

, 267 J.A.M.A. 2333, 2336 (May 6, 1992). S ee also Nelson

et al., Substance-Impaired Physicians: Probationary and Voluntary

Treatment Programs Compared

, 165 W.J. Med. 31 (July 17, 1996). The

Hughes study also revealed that almost eight percent of physicians

admitted to substance abuse or dependence problems at some time in

their lives. I d

. S ee also Gary Logan, “Stress and Access Make

Doctors Vulnerable,” W ash. Post Sept. 3, 1996, at Z11 (quoting

Ronald Dougherty, a specialist in addiction medicine, as stating

“[o ]ne in six physicians regularly uses opiates, one in nine

17 needs of law enforcement,” Von Raab at 1391, and no law enforcement

personnel were in any way involved. The present setting not only

involves the practice of medicine, an endeavor subject to extensive

gov ernmental regulation, but also both a student-school and an

employee-supervisor relationship. Dr. Pierce was undergoing

training in the medical school’s em e rgency medicine residency

program, and was in essence both a student and an employee

providing professional services to the public. “In the case of

searches conducted by a public employer, we must bala nce the

invasion of the employees’ legitimate expectations of privacy

against the government’s need for supervision, control, an d the

efficient operation of the workplace.” O ’Connor at 1499. What the

Court said of the railroad employees in Skinner is true “in spades”

as to Dr. Pierce, practicing and learning emergency medicine,

namely that she “ discharge[d] duties fraught with such risks of

injury to others that even a momentary lapse of attention can have

disastrous consequences.” I d

. at 1419. 9 Likewise, “theregularly uses benzodiazepines and sleeping pills, and one in 10 is

alcohol-dependent.”).

18 substantial n eed of teachers and administrators for freedom to

maintain order in the schools” is a spec ial need such that “the

legality of a search of a student should depend simply on the

reasonableness, under all the cir cumstances, of the search.”

T.L.O. at 742.

D. Privacy expectations; Obtrusiveness

Of course, the fact that “special needs” are present does not

alone resolve the matter. The privacy interests of the party

searched must also be weighed in the balance. “[W]hether a

particular search meets the reasonableness standard is judged by

balancing its intrusion on the individual’s Fourth Amendment

interests against its promotion of legitimate governmental

interests.” A cton at 2390 (interna l quotation marks omitted).

This req uires consideration of, i nter alia

, whether the

individuals’ expectation of privacy is decreased and the relative

obtrusiveness or otherwise of the search. I d

. at 2396 (“Taking

into account all the factors we have considered above

—— the decreased

expectation of privacy, the relative unobtrusiveness of the search,

and the severity of the need met by the search . . .”). Dr.

Pierce’s stat us as a student-employee in the emergency medicine

residency program diminished her legitimate expectations of privacy

vis-à-vis the search at issue. “The employee’s expectation of

privacy must be assessed in the context of the employment

relation.” O ’Connor at 1497. “[I]t is plain that certain forms of

public employment may diminish privacy expec t ations even with10 S ee also Chandler at 4246: “railway employers ‘by reason of

their participation in an industry that is regulated pervasively to

ensure safety’ had diminished expectations of p rivacy” (quoting

Skinner at 1418).

11 In S kinner and Von Raab

, the urinalysis t esting involved a

“monitor of the same sex as the employee remain[ing] close at hand

to listen for the normal sounds of urination” or to observe

directly as the employee produced the sample. V o n Raab at 1388;

Skinner at 1413. This type of intrusive monitored testing, which

Justice Scalia found “offensive to personal dignity,” Von Raab at

1398 (dissenting opinion), and which the Court relied on in finding

a Fourth Amendment search, Skinner at 1413, was not used in the

present case.

19 respect to

. . . personal searches.” V on Raab at 1394. And, as

the Court said of Customs employees required to carry firearms or

interdict illegal drugs, so also with those similarly situated to

Dr. Pierce, “[b]ec a use successful performance of their duties

depends uniquely on their judgment and dexterity, these employees

cannot reasonably expect to kee p from the Service personal

information that bears directly on their fitness.” I d

. “Unlike

most private citizens or governmental employees in general,” such

employees “reasonably sho uld expect effective inquiry into their

fitness and probity.” Id

. 10

Moreover, the intrusiveness of the searc h here was entirely

minimal. There is no evidence that anyone observed, listened to,

or otherwise monitored the excretion of the urine sample. The

record suggests that Dr. Pierce excreted the sample alone in a

bathroom with the door closed. There is certainly nothing to the

contrary, or even to suggest that anyone listened at the door. 1 1

Moreover, Dr. Pierce took the urinalysis at Pathlab, an independent12 Dr. Pierce testified that she chose Pathlab because “that was

the only lab in downtown where I knew I could get that te st done

independently.”

20 laboratory that she had hand picked herself, 12 without Dr. Smith (or

anyone else) being aware that she was going to unde rgo (or had

undergone) such a test, much less at Pathlab, until she turned over

the completely negative results to him. There is no evidence that

she disclosed to Pathlab any personal medical information, such as

what prescription medications she was using. Von Raab , 109 S.Ct.

at 1394-95 n.2. There is no evidence that the urinalysis was used

to look for, or that its results reflected, anything other than the

presence or absence of drugs, such as whether Dr. Pierce was

“epileptic, pregnant, or diabetic.” A cton

, 115 S.Ct. at 2393. The

results of the test were negative for drugs, and thus, so far as

the evidence shows, nothing else about Dr. Pierce was disclosed

thereby. Moreover, had the results been positive, Dr. Pierce could

have elected not to disclose them.

Finally, other circumstances of the test also point to

nonintrusiveness. Dr. Pierce did not take the test until

approximately nine days after Dr. Robert Smith had requested that

she undergo a test as arranged for by him. This factor was deemed

important in Wyman v. James

, 91 S.Ct. 3 81, 384, 387 (1971) (six

days advance notice of requested home visitation of AFDC welfare

recipient factor in finding of Fourth Amendment reasonableness),

which was cited with approval in this respect in Von Raab at 1394

n.2. And, as noted, the test was not undertaken for law

enforcement purposes, law enforcement personnel were not involved,13 As previously noted, the holding in C handler then turned

solely on the absence of any “special” need, as the need there was

in essence me rely “symbolic,” a desire to “project” a public

“image.” Id

.

21 and there was no threat of force and no potential criminal or civil

penalty for refusing. All these factors were deemed important in

Wyman v. James

. Id . at 386-90. Dr. Pierce was orally threatened

by Dr. David Smith with dismissal from the residency program if she

did not ultimately undergo a drug test arranged by Dr. Robert

S mith. However, only the dean of the medical school had the

authority to dismiss her (and any dismissal by the dean was subject

to suspensive appeal); and, in any event, Dr. Pierce never

underwent the test contemplated by the Drs. Smith. Dr. Pierce was

never tested by anyone acting for any governmental agency or

official; and, the wholly noninva sive private test she underwent

was not one commanded, re quested, or anticipated by any state

actor.

All in all, the search here intruded only in the absolutely

most minimal way on Dr. Pierce’s Fourth Amendment int erests;

certainly less so than did the searches in Acton

, Von Raab , and

Skinner

. In C handler

, the Court observed that the Georgia testing

“permits a candidate to provide the urine specimen in the office of

his or her private physician; and the results of the test are given

first to the candidate, who controls further dissemination of the

report,” l a beled this as “relatively noninvasive,” and stated

“therefore, if the ‘special need’ showing had been made, the State

could not be faulted for excessive intrusio n.” I d

. at 4247. 13

Here, there is plainly no more intrusiveness than in Chandler

, if,14 See Terry v. Ohio , 88 S.Ct. 1868 (1968).

22 indeed, as much.

E. Absence of testing policy; Individualized suspicion

Dr. Pier ce does not essentially challenge the foregoing

analysis, nor does she contend that appellants were required to

obtain a warrant or establish probable cause. Instead, she

contends that, as it is undisputed that TTUHSC had no drug testing

policy for its physicians or resi dents, the Fourth Amendment

accordingly precluded appellant s from telling her she would be

dismissed if she did not undergo urinalysis arranged by Dr. Robert

Smith, unless appellants had reasonable, individualized suspicion

that she was using illicit drugs. The character of reasonable,

individualized suspicion which D r. Pierce contends is necessary

appears to be essentially that required for a law enforcement Terry

stop 14 where the officer’s only concern respecting the person

stopped is that he may then have drugs. Dr. Pierce further

contends that there was no basis here for that character of

suspicion.

However, we conclude that the clearly established law does not

now, and did not in March 1990, categorically mandate that sort of

reasonable, individualized suspicion for all non-law enforcement,

minimally intrusive searches in special needs situations, whenever

there was no pre-existing policy authorizing the search.

To begin with, neither the Supreme Court nor this Court has

ever articulated such a categorical requirement. To the contrary,

the Court has repeatedly stated: “the Fourth Amendment imposes no23

irreducible requirement of such suspicion,” Acton at 2391; “neither

a warrant nor probable cause, nor, indeed, any me asure of

reasonable suspicion is an indispensable component of

reasonableness in every circumstance,” Von Raab at 1390; “We have

made it clear, however, that a showing of individualized suspicion

is not a constitutional floor, below which a search must be

presumed unreasonable,” Skinner at 1417; “the Fourth Am endment

imposes no irreducible requirement of reasonable suspicion,” United

States v. Martinez-Fuerte

, 96 S.Ct. 3074, 3084 (1976). It is true,

of course, that in each of these cases there was some sort of

policy. However, in none of these cases did the Court condition

its quoted statements with any sort of proviso, such as “so long as

there was a general policy pursuant to which the search was

conducted” or the like. To the contrary, as further elaborated

below, these opinions indicate that whether individualized

suspicion may be dispensed with depends on the particular context

and a weighing of the invasiveness of the search against the

“special needs” presented. Indeed, in T .L.O. and also in O’Connor

,

in neither of which was the challenged search conducted pursuant to

any general policy, the Court, although sustaining the search after

finding reasonable suspicion, went on to expressly leave open

whether such a finding was necessary to the search’s validity.

Thus, in T.L.O. the Court stated:

“We do not decide whether individualized suspicion

is an essential element of the reasonableness standard we

adopt for searches by school authorities. In other

contexts, however, w e have held that although ‘some

quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,] .

. . t he Fourth Amendment imposes no irreducibl e24

requirement of such suspicion . . . Because the search

of T.L.O.’s purse was based upon an individualized

suspicion that she had violated school rules,

. . . we

need not consid er the circumstances that might justify

school authorities in conducting searches unsupported by

individualized suspicion.” T.L.O. at 743 n.8 (internal

citation omitted; emphasis added).

Two years later in O’Connor the same approach was taken, viz :

“Because petitioners had an ‘individualized suspicion’ of

misconduct by Dr. Ortega, we need not decide whether individualized

suspicion is an essential element of the standard of reasonableness

that we adopt today.” O ’ Connor at 1502. What the Supreme Court

has expr essly left open cannot easily be described as clearly

established, particularly as we have never ruled on the matter.

Moreover, Dr. Pierce’s categorical approach seems counter to

the Supreme Court’s context-specific, balancing approach focusing

on reasonableness under all the particular circumstances. Thus, in

Chandler the Court noted that, when “‘special needs’” “other than

crime detection” were present, whether individualized suspicion was

required depended on “a context specific inquiry, examining closely

the competing private and public interests.” I d

. at 4246. And, in

Acton the Court stated:

“. . . the ultimate measure of the constitutionality of

a governmental search is ‘reasonableness.’

. . . [W]hether a particular search meets the reasonableness

standard ‘”is judged by b alancing its intrusion on the

individual’s Fourth Amendment interests against the

promotion of legitimate governmental interests.”’” Id

. at 2390 (emphasis added; citations omitted).

. . . .

“It is a mistake, howeve r, to think that the phrase

‘compelling state interest,’ in the Fourth Amendment

context, describes a fixed, minimum quantum of

governmental concern, so that one can dispose of a case

by answering in i solation the question: Is there a25

compelling state i n terest here? Rather, the phrase

describes an interest which appears important enough to

justify the particular search at hand

, in light of other

factors which show the search to be relatively intrusive

upon a genuine expectation of privacy.” Id . at 2394-95

(emphasis added).

Skinner also puts the matter thusly:

“.

. . the Fourth Amendment does not proscribe all

searches and seizures, but only those tha t are

unreasonable. [citation] What is reasonable, of course,

‘depends on all of the circumst ances surrounding the

search or seizure and the nature of the search or seizure

itself.’” I d

. at 1414 (quoting United Stat es v.

Hernandez

, 105 S.Ct. 3304, 3308 (1985); emphasis added).

O’Connor states that for Fourth Amendment purposes “‘. . . [w]hat

is reasonable depends on the context within which the search takes

place.’” I d

. at 1498 (emphasis added); quoting T.L.O. at 470).

O’Connor continues by explaining:

“A determination of the standard of reasonableness

applicable to a particular class of searches requires

‘ balanc[ing] the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to

justify the intrusion.’ [citation] In the case of

searches conducted by a public employer, we must balance

the invasion of the employees’ legitimate expectations of

privacy against the government’s need for supervision,

control, and the efficient operation of the workplace.”

Id . at 1498-99 (emphasis added).

. . . .

“.

. . [P]ublic emplo yer intrusions on the

constitutionally protected privacy interests of

government employees

. . . should be judged by the

standard of reasonableness under all the circumstances .”

Id . at 1502 (emphasis added).

Dr. Pierce relies on Delaware v. Prouse

, 99 S.Ct. 1391 (1979).

There, Prouse was indicted for illegal possession of marihuana

seized from the car he was riding in when it was stopped by a

Delaware police officer who thereafter observed the marihuana in26

plain view on the car floor. The patrolman stopping the vehicle

“had observed neither traffic or equipment violation nor any

suspicious activity,” and “made the stop only in order to check the

driver’s license and registration”; he “was not acting pursuant to

any standards, guidelines , or procedures pertaining to document

spot checks, promulgated by either his department or the State

Attorney General.” I d

. at 1394. The only reason given for the

stop was “‘I saw the car in the area and wasn’t answering any

complaints, so I decided to pull them off.’” I d

. The state trial

court granted Prouse’s motion to suppress the marihuana, “finding

the stop and detention to have been wholly capricious and therefore

violative of the Fourth Amendment.” I d

. This ruling was affirmed

by the Delaware Supreme Court and, ultimately, by the Supreme Court

of the United States. The Court observed that it had “only

recently considered the legality of investigative stops of

automobiles where the officers

. . . have neither probable cause to

believe nor reasonable suspicion that either the automobile or its

occupants are subject to seizure under applicable criminal laws.”

Id

. at 1397 (emphasis added). It analogized the case before it to

United States v. Brignoni-Ponce

, 95 S .Ct. 2574 (1975), where the

Court had rejected the assertion that “Border Patrol agents

conducting roving patrols

. . . near the international border”

could constitutionally “stop at random any vehicle in order to

determine whether it contained illegal aliens or was involved in

smuggling,” and had held that such stops were valid only if based

on the reasonable suspicion required for a Terry stop. Prouse at

1397. The Court noted that both stops such as that in Prouse and27

those in Brignoni-Ponce “generally entail law enforcement officers ”

exhibiting “a possibly unsett ling show of authority.” P rouse at

1398 (emphasis added). This was contrasted to the fixed checkpoint

stops, upheld in Martinez-Fuerte , “where all vehicles are brought

to a halt or a near halt, and all are subjected to a show of the

police power” and “‘the motorist can see that other vehicles are

being stopped, he can see visible signs of the officers’ authority,

and he is much less likely to be frightened or annoyed by the

intrusion.’” P rouse at 1398. The Court went on to hold violative

of the Fourth Amendment “subjecting every occupant of every vehicle

on the roads to a seizure

. . . at the unbridled discretion of law

enforcement officials.” I d

. at 1400 (emphasis adde d). It

explained that “absent reasonable s uspicion that the driver is

unlicensed or his vehicle unregistered

. . . we cannot conceive of

any legitimate basis upon which a patrolman could decide that

stopping a particular driver for a spot check would be more

productive than stopping any other driver.” I d

. The Court

observed that it did “not preclude” other “spot checks that involve

less intrusion or that do not involve the unconstitutional exercise

of discretion,” and concluded “we hold only that persons in

automobiles on public roadways may not for that reason alone have

their travel and privacy interfered with at the unbridled

discretion of police officers .” Id . at 1401 (emphasis added).

Though Prouse is doubtless somewhat supportive of Dr. Pierce’s

contentions, we conclude that it does not suffice to clearly

establish that in the present context her Fourth Amendment rights

were violated unless Drs. Smith and Binder had such reasonable28

suspicion that she was using drugs as would be required for a law

enforcement Terry stop where the only concern is that the person

stopped may then have illegal drugs.

To begin with, as Prouse states over and over, it is a law

enforcement stop by police case. That is certainly not this case.

And that makes a real difference, as explained in O’Connor :

“Even when employers conduct an investigation, they have

an interest substantially different from ‘the normal need

for law enforcement.’ [citation] Public employers have

an interest in ensuring that their agencies operate in an

effective and efficient manner, and the work o f these

agencies inevitably suffers from the inefficiency,

incompetence, mismanagement, or o ther work-related

misfe asances of its employees. Indeed, in many cases,

public employees are entrusted with tremendous

responsibility, and the consequences of their misconduct

or incompetence to bo th the agency and the public

interest can be severe. In contrast to law enforcement

officials, therefore, public employers are not enforcers

of the criminal law ; instead, public employers have a

direct and overriding interest in ensuring that the work

of the agency is conducted in a proper and efficient

manner.” Id . at 1501.

O’Connor goes on to state: “We hold, therefore, that public

employer intrusions on the constitutionally protected privacy

in terests of government employees . . . should be judged by the

s tandard of reasonableness under all the circumstances.” I d

. at

1502. O ’Connor then expressly declines to “decide whether

individualized suspicion is an essential element of the standard of

reasonableness we adopt today.” I d

. As the O’Connor search was

not pursuant to any general policy, and as O’Connor was decided

after Prouse

, Prouse cannot have clearly established what Dr.

Pierce contends it did.

Further, in Prouse the Court stressed that there was nothing

which distinguished the vehicle stopped from any other vehicle on15 In one eight-day period, “roughly 146,000 vehicles passed

through the checkpoint” and “[o]f these, 820 vehicles were referred

to the secondary inspection area.” Id . at 3081.

29 the highway. In S kinner

, however, the Court sustained a regulation

giving railroad officials discretion to select particular employees

for drug testi ng, without individualized suspicion of drug use,

provided they had been involved in certain operating rule

violations, including noncompliance with a sign and exces s ive

speeding. I d

. at 1410. Similarly, in M artinez-Fuerte

, all

vehicles had to go through the fixed checkpoint, but “most” went

through “w ithout any oral inquiry or close visual examination,”

being barely stopped or a llowed to “merely ‘roll’ slowly through

the checkpoint.” I d

. at 3078 & n.1. “In a relatively small number

of cases,” ve hicles were required to proceed “to a secondary

inspection area, where their occupants are asked abou t their

citizenship and immigration status” and at which “the average

length of an investigation” was “three to five minutes.” I d

. at

3078. 15 The Court held the selective reference to the secondary

inspection area did not have to be made on the basis of any

articulable, individualized suspicion. I d

. at 3078, 3085.

Obviously, the intrusion selectively suffered by occupants of the

less than one percent of vehicles at the checkpoint which were

referred to secondary was far greater than that undergone by all

the other vehicles which merely barely stopped or rolled slowly

through the checkpoint w ithout any oral inquiry or close visual

examination. Nevertheless, the Court concluded that “[a]s the

intrusion here is sufficiently minimal

. . . no particularized30

reason need exist to justify” the referral to secondary. Id . at

3085.

Moreover, the presence of a testing policy would not have

materially ameliorated the situation from the point of view of one

in Dr. Pierce’s position. Following Skinner and Martinez-Fuerte

,

a presumably permissible policy could have provided that a resident

guilty of program misconduct sufficient to justify dismissal

—— as Dr.

Pierce surely was

—— could, in the discretion of the supervisory

program officials as part of their evaluation of whet her the

underlying misconduct should result in the dismissal of the

particular resident, be directed to provide the results of a urine

drug test in connection with a psychological evaluation, with the

penalty for the underlying misconduct to be dismissal in the event

of refusal to furnish the test results. While such a policy would

have given Dr. Pierce advance notice that a drug test might be

required if she engaged i n dismissable program misconduct, the

penalty for not providing the drug analysis would simply be that

th e underlying misconduct would be penalized by dismissal as it

could have been whether or not a test was requested and refused, a

matter common sense would adequately notify Dr. Pierce of. And,

under such a policy, there wo uld be no more discretion than in

Skinner for discretionary tests for rules violations or in

Martinez-Fuerte for discretionary referral to secondary inspection.

We conclude that in a situation of this character

—— a non-law

enforcement, employer-sch ool search where there are very special

needs and the intrusiveness of the search and the subject’s privacy

interests are minimal

—— there is not now, and was not in March 1990,16 We do not suggest that those in state medical school

residency programs may for that reason alone be required, on pain

of dismissal, to undergo ad hoc d rug testing at the whim and

unbridled discretion of program officials having no more reason to

single out one resident than another. But that, of course, is not

the situation here.

31 any clearly established Fourth Amendment requirement for either an

existing general search policy or individualized suspicion of the

type required for a law enforcement Terry stop for drug possession.

This is not to say that there must no t be some legitimate reason

for the individual being singl ed out. 1 6 The search must be

reasonable under all the circumstances, balancing the individual’s

privacy interests against the interests of the govern mental

institution.

III. Qualified Immunity Here

We turn now to the final qualified immunity issue: would all

reasonable state medical school residency program supervisors,

similarly situated to Drs. Smith and Binder and with the

information they had, have realized that their conduct was

unreasonable under all the circumstances, balancing Dr. Pierce’s

privacy interests against the interests of TTUHSC, an d hence

invaded Dr. Pierce’s Fourth Amendment rights? On the basis of the

undisputed historical facts, we answer this questi on in the

negative.

When Dr. Smith, director of the TTUHSC residency program,

learned of the February 22 incident at St. Joseph’s in Phoenix, he

was objectively faced with what could reasonably be considered as

a most serious situation. Dr. Pierce, one of the TTUHSC residents

i n its emergency medicine residency program, while on brief32

rotation at St. Joseph’s, had slapped an emergency room patient in

the face. The patient was about to undergo a CAT scan for a

possible internal head injury following an automobile accident in

which he had smashed through his car’s windshield. He was flat on

his back on the CAT scan table, was under restraints, and

technicians were holding him down. Dr. Pierce stated that after

she tightened his restraints he spat in her face, and s he then

slapped him, not for any therapeutic purpose but in an impulsive

reaction of surprise or anger. However , she slapped him at least

twice, three times ac cording to the March 2 letter to Dr. Smith

from Dr. Shamos, director of the St. Joseph’s trauma center. Dr.

Pierce described the slaps as “hard” and “fairly hard.” After she

had “hard slapped” the patient, Dr. Pierce, who was the only

physician present, left the room and washed her face. She returned

and approached the patient, whereupon, as she described it, “a

nursing supervisor came and grabbed me by the arm and physically

pulled me away from” the patient, saying something like “get away

from him.” Dr. Pierce thereafter remained outside the room, where

she was when, some time later, the other physician on duty arrived.

The St. Joseph’s administration initially wanted to

immediately terminate Dr. Pierce, but she was ultimately allowed to

participate in the remaining three days of her rotation, provided

she underwent counseling, which she did. The counselor recommended

that on her return to El Paso “she contact the University

Psychiatric department to continue counseling sessions.”

Dr. Pierce, a licensed physician, was in the residency program

in order to become a board certified emergency room physician. She33

admitted the obvious: that she was in the program both to learn

and to be taught; that she sought a dipl oma or certificate from

Texas Tech which would in substance attest to her special

competence as an emergency room physician; that it was “common to

have aggressive patients in the ER” and not “a rare occasion” for

“a hostile or aggressive patient” to come in; that her slapping the

patient was inappropriate; that the practice of medicine “requires

that a doctor be able to make calm, rational decisions in life or

death situations,” and emergency medicine physi cians need to be

“capable of remaining calm and engaging in rational behavior in the

heat of emergency situations” and “able to react calmly and coolly

in tough situations”; and that it was appropriate for those in

charge of the residency program to assess her ability to do those

things, as well as to assess whether she had good interpersonal

skills, which would be needed in an emergency room setting, and

also to investigate t he reasons why she engaged in inappropriate

behavior.

This was no t the first time Dr. Pierce had come to the

unfavorable attention of the TTUHSC fac ulty and administration.

During the previous summer, a faculty committee had found that her

“performance was not up to the level of acceptable standards” and

she had been placed on probation for, among other things, excessive

tardiness, failing to carry an acceptable number of patients, and

poor interpersonal relationships wi th faculty and patients. At

that time in 1989 some of the faculty discussed drug use as one of

t he possible explanations for Dr. Pierce’s behavior. Dr. Nelson

had even questioned her about drug use, receiving a n egative17 In fact, Dr. Pierce testified that she had smoked marihuana

prior to or during the summer of 1989 with other TTUHSC residents.

How ever, neither the appellants nor any member of the TTUHSC

faculty knew of this in March 1990.

18 As noted, Dr. Smith did not have the authority to discharge

Dr. Pie rce; if she had been discharged by the Texas Tech medical

school dean, she would have had appeal and hearing rights before

the discharge could have become effective.

34 response. 17 Although her probation had ended before her St.

Joseph’s rotation

— — and the St. Joseph’s personnel were unaware of

it

—— some of Dr . Pierce’s same problems continued. Dr. Shamos’s

written evaluation of her at St. Jose ph’s ranked her in the very

lowest category in each of the areas of “Patient Relationships” and

“Professional Relationships.”

Dr. Smith, as a result of learning of the February 22

incident, placed Dr. Pierce on prob ation, with pay, pending

investigation. It was determined to have Dr. Pierce undergo a

psychiatric evaluatio n and, in connection with it, a drug urine

test. When Dr. Pierce was informed of this, she objected to the

drug analysis. Dr. Smith told her he would take it up with the

faculty, and she was ultimately tol d by Dr. Smith she would be

dismissed if she refused to be tested. 18 However, Dr. Pierce did

not commit herself and no action was taken. On March 23

— — some nine

days after first being notified of the drug test scheduled for her

by Dr. Robert Smith

—— Dr. Pierce, without any prior notice to anyone

at TTUHSC, was tested in a wholly unobtrusive manner by a private

l aboratory of her own choosing that furnished the results, which

were negative, to her only. After Dr. Smith received this report

from Dr. Pierce, and after he also received the psychiatric19 Dr. Salo was the clinical psychologist selected by Dr.

Pierce.

35 evaluations of Dr. Pierce by Dr. Robert Smith an d Dr. Salo, 1 9 Dr.

Pierce’s probation was lifted.

Objecti vely, there w as ample, reasonable basis for singling

out Dr. Pierce for special scrutiny and investigation of a kind not

applicable to others in the residency program. Dr. Pierce, not

long after coming off probation, committed serious professional

misconduct in her capacity as a member of the residency program.

In light of these occurrences, a decision had to be made as to

whether, or under what circumstances, TTUHSC wo uld allow her to

remain a part of its emergency medicine residency program. Drug

test results

—— like the psychiatric evaluations

—— were simply to be

one part of that decision-making process, not its ultimate focus or

sol e determinant. Objectively, something caused Dr. Pierce’s

behavior in the program to be seriously inappropriate. What things

associated with her brought this about? Information in this

respect could objectively enhance the reliability of the ultimate

decision to be made as to the appropriate future for Dr. Pierce in

the residency program.

As we have observed, drug use among physicians has indeed been

a problem (see note 9, supra ). Appellants’ expert witness Dr.

Briones testified that Dr. Pierce exhibited many of the behavioral

problems that are symptomatic of drug use, such as incidents of

unprofessional and out-of-character behavior, unexplained absences,

and tardiness. S ee also Michael Fl eming, P hysician Impairment:

Options for Intervention , 50 Am. Fam. Physician 41 (July 1, 1994)20 Dr. Pierce maintains that a drug test would have been too

late to shed any light on the February 2 2 incident. It is true

that it was rather unlikely that drugs present then would show up

as late as March 17, twenty-three days later, when the test

a rranged by Dr. Robert Smith was initially scheduled to be

performed. But it is not wholly improbable. See, e.g., Von Raab

at 1396 (“Petitioners’ own expert indicated below that the time it

takes for particular drugs to become undetectable in urine can vary widely depending on the individual, and may extend for as long as

22 days”; and noting this Court’s “reliance on certain academic

literature that indicates that testing of urine can discover drug

use for

. . . weeks after the ingestion of the drug” [internal

quotat ion marks omitted]); 49 C.F.R. § 219.309(b)(2) (1987)

(“Because of its sensitivity, the urine test may reveal whether or not you have used certain drugs within the recent past (in a rare

case, up to sixty days before the sample is collected)

. . . if you provide a blood sample there will be no presumption of impairment

from a positive urine test. If you have used any drug off the job

(other than a medication that you possessed lawfully) in the prior

sixty days, it may be in your interest to provide a blood sample.

If you have not made unauthor ized use of any drug in the prior

sixty days, you can expect that the urine test wi ll be negative;

and you may not wi sh to provide a blood sample”). More

importantly, if drugs played a part in Dr. Pierce’s behavioral

problems, it was not unlikely that she ingested them with some regularity. Finally, this sort of argument was rejected in both

Von Raab and Skinner

.

36 (explaining that substance problem indicators include “changes in

work habits, unusual work schedule, a change in prescribing habits,

procedural errors, complaints from staff and patients, and severe

medical record tardiness”). Drug use, though not objectively shown

to be a likel y

cause in Dr. Pierce’s case, could at least be

reasonably considered as one possible contributing factor, and it

was not objectively unreasonable to want some further information

which could either confirm or render less likely that possibility.

This approach was not necessarily calculated to be detrimental to

Dr. Pierce. She could only benefit from a negative drug test.

However, she delayed for several days. 20

We recognize that in order to preclude qualified immunity it37

is not necessary that “the very action in question has previously

been held unlawful,” Anderson at 3039, or that the plaintiff “point

to a previous case that differs only trivially from his case.”

K.H. Through Murphy v. Morgan

, 914 F. 2d 846, 851 (7th Cir. 1990)

(emphasis added). However, the facts of the previous case “do need

to be materially similar.” L assiter v. Alabama A&M University

, 28

F.3d 1146, 1150 ( 11th Cir. 1994) (en banc) (emphasis added). We

also recognize that the egregiousness and outrageousness of certain

conduct may suffice to obviously locate i t within the area

proscribed by a more general constitutional rule: “There has never

been a section 1983 case accusing welfare officials of selling

foster children into slavery; it does not follow that if such a

case arose, the officials would be immune from damages liability

.

. .” K .H. Through Murphy at 851. But the same common sense which

informs this teaching likewise prevents its expansion to the point

of rendering qualified im munity an insignificant aberration or

infringing on the settled doctrine that “[i]t is not enough, to

justify denying immunity, that liabil ity in a particular

constellation of facts could have been, or even that it was,

predicted from existing rules and dec isions. . . . Liability in

that particular set [of facts] must have been established at the

time the defendant acted.” I d

. As the en banc Eleventh Circuit

stated in L assiter : “For qualified immunity to be surrendered,

pre-existing law must dictate, that is, truly compel (not just

suggest or allow or raise a question about), the conclusion for

every like-situated, reasonable government agent that what

defendant is doing violates federal law in the circumstances .” I d

.21 In G unaca

, w e approvingly described and quoted from our

decision in Noyola , as follows:

“Because our consideration of such First Amendment claims

involves a case-specific balancing of the employee’s

First Amendment rights and the government’s interest in

maintaining discipline and efficiency in the work place,

[citing Noyola ], we held that ‘[t]here will rarely be a

basis for a priori judgment that the termination or discipline of a public employee violated “clearly

established” constitutional rights.’” G unaca at 474

(quoting Noyola at 1025).

22 Thus Lassiter states:

“The line is not to be found in abstractions

—— to act

reasonably, to act with probable cause, and so forth

—— but

in studying how these abstractions have been applied in

concrete circumstances. [citation and internal quotation

marks omitted] And, as the en banc court recently

accepted:

‘When considering whether the law applicable

to certain facts is clearly established, the

facts of ca ses relied upon as precedent are

important. The facts need not be the same as

the facts of the immediate case. But they do

need to be materially similar. [citation]

Public officials are not obligated to be

creative or imaginative in drawing analogies

from previously decided cases .’” Id . at 1150

(citations omitted).

38 at 1150. These principles have particular force where, as here,

resolution of whether the defendant’s conduct violated the

constitutional provis ion sued on is heavily dependent on a

balancing or weighing against each other of different factors

according to the degree t hey are present in the matrix of facts

constituting the particular context in which the asserted violation

occurred. S ee, e.g., Gunaca at 474-75; Noyola v. Texas Department

of Human Resources

, 846 F.2d 1021, 1025 (5th Cir. 1988). 21 S ee also

Lassiter at 1150. 22

Con sidering that S kinner authorized drug tests on a39

discretionary, ad hoc basis if the employee had been involved in

certain rule violations but without further individualized

suspicion, that that principle had not (and has not) been held by

the Supreme Court or this Court t o be dependent on the prior

existence of a rule so providing, and that objective factors

distinguished Dr. Pierce from other residents in the program so

that she was not singled out arbitrarily or capriciously, and

considering a lso the minimal intrusiveness and extent of the

invasion of Dr. P ierce’s Fourth Amendment interests and the

l egitimate special needs of the medical school program where she

was a student-employee, we conclude that Drs. Smith and Binder are

entitled to qualified immunity as a matter of law. The question is

not whether other reasonable or more reasonable courses of action

were available. It is, rather, whether of medical school officials

similarly situated to Drs. Smith and Binder “all but the plainly

incompetent” would have realized at the time that what they did

violated Dr. Pierce’s Fourth Amendment rights. H unter at 537;

Blackwell at 304. Under the circumstances, that question must be

answered in the negative.

Conclusion

We hold that appellants are entitled to qualified immunity as

a matter of law. The judgment of the district court is accordingly

reversed, and the cause is remanded with directions to enter

judgment for appellants.

REVERSED40

ENDRECORD41

DENNIS, Circuit Judge, dissenting.

I emphatically disagree w ith the majority’s conclusion that

the state attorney general has shown that this case falls within

the closely guarded “special needs” category recently recognized by

the Supreme Court within which a state officer without reasonable

individualized su spicion of wrongdoing may require a person to

submit to an urinalysis drug test. In this case state medical

school administrative officers, without reasonable individualized

suspicion that a physician-resident trainee’s urine contained

evidence of illegal drug usage (and in the absence of any

established d rug testing policy) ordered her to submit to an

urinalysis drug test, on pain of termination of her employment,

res idency training, and severe or fatal damage to her medical

professional career. The state attorney general concedes that the

state compelled drug test effected a search within the meaning of

the Fourth and Fourteenth Amendments. See Defendants-Appellants’

Brief p. 11. Both the currently applicable law, and the clearly

established l aw at the time the state officers ordered the

physician-resident to submit to urinaly sis drug testing (March,

1990), require that a state officer hav e an individualized

reasonable suspicion that illegal drug use evidence is contained in

a person’s urine before ordering her to submit to an urinalysis

drug test. The majority’s erroneous conclusion that the state’s

proffered “special need” for drug testing justified the suppression

of the Fourth Amendment’s normal requirement of individualized

suspicion led to its mistaken reversal of the district court’s

judgment implementing jury awards to the plaintiff of compensatory42

and punitive damages. Accordingly, I respectfully dissent.

I. Issues On Appeal

On appea l, the state attorney general, on behalf of the

defendants-appella n ts, assigns and argues for reversal of the

district court’s judgment and the plaintiff’s jury-awarded damages

on four issues: (1) The district court erred in denying defendants’

motion for judgment as a matter of law because no individualized

suspicion was required to justify the defendants in compelling Dr.

Pierce to submit to an urinalysis drug test; (2) Alternatively,

the district court er red in not granting defendants’ motion for

judgment as a matter of law because reasonable minds could not

differ that the defendants had reasonable grounds to suspect that

Dr. Pierce was using illegal drugs at the time she was ordered to

submit to an urinalysis; (3) The district court erred in denying

defendants’ motions for summary judgment and judgment as a matter

of law because at the time the defendants ordered Dr. Pierce to

take the drug test the law was not clearly established that an

individualized reasonable suspicion of wrongdoing was required

before a state officer could order a public employee or public

professional school student to submit to an urinalysis drug test;

and (4) The district court erred in denying judgment as a matter

of law on the question of punitive damages.

That the state officers’ actions invaded an expec tation of

privacy that society is prepared to recognize as reasonable is not

disputed. The state attorney general, on behalf of the defendantsappellants, expressly does “not contest that whether the actions

that were taken constituted a ‘search’ within the meaning of the43

Fourth Amendment.” Defendants-Appellants’ Brief p. 11.

II. Analysis of Overlapping Issues

Iss ues 1. & 3. The clearly established law now and always has

required that state officers have at least reasonable

individualized suspicion of wrongdoing before ordering a free adult

person to submit to an urinalysis drug test.

The currently applicable law and the clearly established law

at the time the state officers ordered the physician-resident

trainee to submit to urinalysis in March, 1990 require that a

state officer have an individualized reasonable suspicion that a

person’s urine contains evidenc e of illegal drug use before

ordering her to submit to an urinalysis drug test. In 1989, the

Supreme Court, in Skinner v. Railway Labor Executives Ass’n ., 489

U.S. 602 (1989) and National Treasury Employees Union v. Von Raab

,

489 U.S. 656 (1989), recognized a “special needs” category of cases

involving train operators and Customs Service agents and permitted

suspicionless government mandated urinalysis of such persons under

the particular and unique circumstances and regulated drug testing

programs in those cases. Previously, Supreme Court Justices, in

dicta and separate op inions, had spoken of “special needs” in

contexts other than urinalysis drug t esting but clearly had not

designated a “special needs” category for suspicionless searches or

seizures. Subsequent to S kinner and Von Raab the Supreme Court, in

Vernonia School District 47J v. Acton, 115 S.Ct. 2386 ( 1995),

recognized a “special needs” category for sus picionless random

sam ple urinalysis of secondary school athletes with parental44

con sent under the particular, unique circumstances and detailed

written drug-testing policy in that case. Recently, in C handler v.

Miller , ---U.S.---, 117 S.Ct. 1295 (1997), the Supreme Court held

tha t a state’s statutory requirement that candidates for state

office su bmit to an urinalysis drug test does not fit within the

closely guarded “special needs” category of constitutionally

permissible suspicionless searches established by Skinner

, Von Raab

and Vernonia and that those precedents remain the guides for

determining whether any proffered “special needs” for suspicionless

drug testing passes constitutional muster. In the present case, it

is clear that the state officers’ order that the adult physicianresident trainee submit to urinalysis drug testing, which was not

based on reasonable individualized suspic ion, did not fit within

the closely g uarded “special needs” category of constitutionally

permissible suspicionless searches, because the a d hoc drug test

order was not supported by an established drug testing program or

a showing of any of the fact ors necessary to justify a “special

needs” category and suspicionless drug testing policy or program.

A. Overview, Including The Law At

The Time Of The Urinalysis Drug Test

Order In The Present Case And Prior

Thereto

.

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searche s and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported45

by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

Until the late 1960's, the steadfast rule was that in order

for a search to be “reasonable,” law enforcement officials must

first obtain a warrant from a neutral and detached magistrate by

establishing probable cause that a law had been violated; and that

in the few specific situations in which obtaining a warrant was

deemed impracticable probable cause was still required. S ee, e.g.,

Carroll v. United States

, 267 U.S. 132 (1925); Agnello v. United

States

, 269 U.S. 20 (1925). As the Supreme Court considered

nontraditional applications of the Fourth Amendment, however, such

as searches by publ ic inspections officials, S ee Camara v.

Mun icipal Court , 387 U.S. 523 (1967), and frisks by police

officers, Terry v. Ohio

, 392 U.S. 1 (1968), it found it needed more

flexibility than the warrant and probable cause requirements could

provide. The Court began, in limited circumstances, to recognize

specific permissible departures from the traditional probable cause

requirement, after “balancing the need to search against the

invasion which the search entails”. Camara , 387 U.S. at 537; See

Terry

, 392 U.S. at 21. The departures have been of two different

k inds: (1) those requiring only reasonable individualized

suspicion; and (2) those requiring no individualized suspicion but

only a random or other nonarbitrary selection process. See Wayne

R. LaFave, Computers, Urinals, and Fourth Amendment: Confessions of

a Patron Saint

, 94 M ICH

. L. R EV

. 2553, 2575-1576 (1996)[hereinafter46

LaFave]; Cf

. Terry v. Ohio, supra , and Camara v. Municipal Court,

supra

.

Each situation in which the Supreme Court has created an

exception that allows an intrusion without reasonable

individualized suspicion is markedly different from the s t ate

mandated urinalysis test situation in the present case. In

comparison, each of those cases is clearly distinguishable from the

present case on one or more of the following grounds: (1) the

nature of the intrusion was much less severe; (2) the magnitude of

the governmental need for the search was far greater; and/or (3) it

was impracticable or impossible to respond to the governmental

need with the individualized suspicion requirement. S ee LaFave at

2577. (citing and referencing cases).

For example, the premises inspection cases do not involve a

serious intrusion upon personal privacy because e ven the housing

inspections, and especially the business inspections, are n o t

“personal in nature.” C amara

, 387 U.S. at 537. The concern of the

inspector is directed toward such facilities as the plumbing,

h eating, ventilation, gas and electrical systems, and toward the

accumulation of garbage and debr is, and there is no rummaging

through private papers and effects of the householder. By

comparison, the type of search at issue in the present case is very

personal in nature, intruding upon “an e xcretory function

traditionally shielded by great pri vacy.” S kinner

, 489 U.S. at

626; LaFave at 2577-2578.

The present case is distinguishable from the “special needs”

urinalysis cases, and from other Fourth Amendment cases, in which47

searches without individualized suspicion were permitted, because

those cases involved far greater magnitudes of risks. The searches

in those cases were responsive to situations in which even one

undetected instance of wrongdoing could have injurious consequences

for a great number of peo ple: as in the case of building

inspections, even a single safety code violat ion can cause fires

and epidemics that ravage large urban areas. Camara , 387 U.S. at

535; as in airport screening, where even a single hijacked plane

can result in the destruction of hundreds of human lives and

millions of dollars of property. United State v. Edwards

, 498 F.2d

496, 500 (2d Cir. 1974); as in particular compr ehensive drugtesting programs, in Skinner for example, where a single drugimpaired train operator could produce disastrous consequences

including great human and property loss, Skinner

, 489 U.S. at 628;

in Von Raab , where a customs official using drugs could cause the

noninterdiction of a sizable drug shipment and consequently injury

to the lives of many, and perhaps a breach of national security,

Von Raab 489 U.S. at 670, 674.; and in Vernonia in wh ich the

significant government interest in a drug free secondary

educational and athletic environment has a national impact of great

magnitude on vast numbers of school children who are not free

adults but are under the guardianship of publ ic school districts

throughout the country. Vernonia Sch. Dist. 47J v. Acton

, ---U.S.--

-, 115 S.Ct. 2386 (1995); See LaFave at 2578.

Most important of all, the cases allowing a search without

individualized suspicion upheld the suspicionless searches only

after recognizing the Fourth Amendment’s general rule requiring at48

lea st reasonable individualized suspicion, and then pointed to

s ound reasons why that standard would be unworkable under the

unusual circumstances presented. In Camara , the court emphasized

that an individualized suspicion test was impracticable for safety

inspections because evidence of code violations ordinarily was not

observable from outside the premises. C amara

, 387 U.S. at 537.

Suspicionless searches of prisone rs after contact visits are

permissible precisely because the extent of scrutiny necessary to

obtain individualized suspicion would cause obvious disruption of

the confidentiality and intimacy that these visits are intended to

afford. B ell v. Wolfish

, 441 U.S. 520, 560 n.40 (1979) In

Skinner, requiring individualized suspicion for testing train

operators after an accident was not feasible because “the scene of

a serious rail accident is chaotic.” S kinner

, 489 U.S. at 631. In

Von Raab , the suspicion requirement for testing customs officials

was impractical because it was “not feasible to subject [such]

employees and their work product to the kind of day-to-day scrutiny

that is the norm in more traditional office environments.” V on

Raab

, 489 U.S. at 174. The border search and airport search cases

are obviously distinguishable because in each the authorities are

in a now-or-never situation as to large numbers of travelers who

could not feasibly have been subjected to prior unintrusive

scrutiny. S ee, e.g., United States v. Ramsey

, 431 U.S. 606 (1977);

United States v. Moreno

, 475 F.2d 4 4 (5th Cir. 1974); LaFave at

2578-2579.

By contrast, there is no comparable justification or precedent

for allowing the state medical sc hool administrative officers in49

the present case to order physician-resident trainee drug tests

without individualized suspicion. Each relatively small group of

residents is under constant supervision and/or observation by

veteran doctors, nurses, hospital workers, administrators and

peers. In this case, Dr. Pierce was one of only six residents in

Texas Tech’s emergency medicine program. Plainly, there has been

no showing that the reasonable individualized suspicion test would

likely be ineffectual under the circumstances of the Physicianresidents’ employment and training.

B. The Pre-Skinner Urinalysis Cases

Prior to Skinner v. Railway Labor Executive’s Ass’n.

, 489 U.S.

602 (1989), and National Treasury Employees Union v. Von Raab

, 489

U.S. 656 (1989), the consensus of courts, which ruled upon the

validity of urine tests for public employees required as a

prerequisite some articulable basis for suspecting that the

em ployee was using illegal drugs, usually framed as “reasonable

suspicion.” S ee 4 LaFave, S E ARCH AND S EIZURE --A T REATISE ON THE F OURTH

A MENDMENT

, §1 03(e), p.498 (3d ed. 1996)(citing cases at n.180);

Miller, Mandatory Urinalysis Testing and the Privacy Rights of

Subject Employees: Toward a General Rule of Legality Under the

Fourth Amendment

, 44 U.P ITT .L.R EV

. 201, 218-230 (1986)(discussing

cases). “[V]irtually all the reported cases...concluded that such

testing is unconstitutional in the absence of some reasonable

i ndividualized suspicion.” Fraternal Order of Police v. City of

Newark

, 524 A.2d 430, 436 (N. J. 1987)(The “rea sonable50

individualized suspicion test fairly accommodates the legitimate

interest of employee privacy without unduly restricting the public

employer’s opportunity to monitor and control the use of drugs by

employees.”)

There were exceptions to this general rule for positions

involving so me unusually pressing public safety or security

concerns, such as correctional officers in direct conta ct with

dangerous prisoners, utility employees with access to vital areas

of nuclear power plants, or narcotics officers with dangerous

undercover assignments. But suspicionless testing was generally

rejected for public employees with less unusual responsibilities,

including ordinary police officers. Schulhofer, O n the Fou rth

Amendment Rights of the Law-Abiding Public

, 1989 S U P

. C T

. R EV

. 87,

129-130 (1990)(citing cases).

C. The Majority’s Mistaken Reliance

On Pre-Skinner “Special Needs” Dicta

In Inapposite Non-Drug Test Cases

The S upreme Court did not actually establish and apply the

“special needs” category permitting suspicionless urinalysis drugtesting of certain types of employees until 1989 in Skinner and Von

Raab. Previously, the Supreme Court Justices had spoken of

“special needs” in dicta and in a separate opinion in a few cases

that did not involve drug testing or a personal privacy invasion as

serious as the compelled collection and analysis of a person’s

urine. Moreover, the Supreme Court in those cases upheld the

search or seizure as having been based upon a reasonable51

individualized suspicion.

In New Jersey v. T.L.O.

, 469 U.S. 325 (1985), the Court found

that a teacher’s report that a high school student had been smoking

on school premises contrary to rules amounted to a reasonable

suspicion tha t the student’s purse contained cigarettes. In

O’Connor v. Ortega

, 480 U.S. 709 (1987), the Court found that

charges of specific improprieties gave an emp l oyer the

individual ized suspicion of employment related sexual and other

misconduct of Dr. Ortega to justify a search of his desk on

government premises. In G riffin v. Wisconsin

, 483 U.S. 868 (1987),

the Court found that the tip rece ived by a police officer that a

probationer was storing guns in his apartment provided reasonable

suspicion of wrongdoing.

The majority opinion’s attempt to characterize these cases as

representing the establishment of expansible “special needs”

categories prior to and unlimited by Skinner, Von Raab and

Vernonia, is untenable. The majority’s reasoning is not only

inconsistent with the Skinner trilogy, it is based entirely on

dicta and it completely disregards the incongruous subject matter

and holdings of those decisions as well as other statements

contradictory to its thesis in the opinions. S ee Griffin

, 483 U.S.

at 876; O’Connor , 480 U.S. at 726; T.L.O. , 469 U.S. at 342 & n.8.

D. The Currently Existing Law

The Supreme Court in its most recent urinalysis drug test52

case, reaffirmed that the Fourth Amendment requires the government

to respect th e right of people to be secure in their persons

against unreasonable searches and seizures, and that to be

reasonable under the Fourth Amendment, a search ordinarily must be

based on individualized suspicion of wrongdoing. C handler v.

Miller

, 117 S.Ct. 1295, 1298 (1997)( citing Ve rnonia School Dist.

47J v. Acton

, 115 S.Ct. 2386, (1995)). However, in 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 searc h may be reasonable despite the

absence of such suspicion. Chandler , 117 S.Ct. at 1298, ( quoting

Skinner , 489 U.S. at 624); see also Von Raab , 489 U.S. at 665-66.

The court clearly indicated that Skinner and Von Raab must be

read in their unique contexts. S kinner concerned Federal Railroad

Administration (FRA) regu lations that required blood and urine

tests of rail employees involved in train wrecks. The FRA adopted

the drug-testing program in response to evidence of on the job drug

and alcohol abuse by railroad train crews, the enormous safety

hazard posed by such abuse, and the documented nexus between

impaired employees and the incidence of train accidents. Factors

tending to offset the privacy concerns were t hat the regulations

reduced intrusiveness; the fact that the industry was regulated

pervasively for safety diminished privacy expectations; the

surpassing safety risks and interests; the illegal drug and alcohol

use by rail employees could cause great human loss before signs of

i mpairment were noticeable to supervisors; the program helped53

obtain invaluable information about major train wreck causes and;

an individualized suspicion requirement in the chaotic aftermath of

a train accident would impede detection of causation. See Chandler,

117 S.Ct. at 1301.

In Von Raab

, drug interdic tion had become the Customs

Service’s primary enforcement mission; the covered posts directly

involved drug interdiction or otherwise required Customs officers

to carry firearms; the employees had access to vast sources of

contraband; officers had been targets and some had succumbed to

bribery; and it was not feasible to subject Customs Service

employees to the kind of day to d ay scrutiny that is the norm in

more traditional work environments. Chandler

, 117 S.Ct. at 1301-02.

In Chandler the Supreme Court also pointed out the set of

unique circumstances in Vernonia School District 47J v. Acton

, 115

S.Ct. 2386 (1995), under which it had sustained a random sample

drug-testing program for high school students engaged in interscholastic at hletics, with written consent of each athlete’s

pa rents, during the season of each sport: public school systems

bear large responsibilities as “guardia n and tutor” of children

entrusted to their care; there was an “immediate crisis” caused by

a sharp increase in drug use in the school district; student

athletes were leaders of the drug culture; students within the

school enviro nment have a lesser expectation of privacy than

members of the population generally; it is important to deter drug

use by school children and to reduce the risk of injury caused by

drug use among student athletes. Chandler , 117 S.Ct. at 1302.

According to the Chandler court

, Skinner

, Von R aab and54

Vernonia establish that the government’s “proffered speci al need

for drug testing must be substantial--important enough to override

the individual’s acknowledged privacy interest, sufficiently vital

to suppress the Fourth amendment’s no rmal requirement of

individualized suspicion.” C handler

, 117 S.Ct. at 1303. The

Supreme Court in Chandler rejected the state’s invitation to apply

a more deferential framework, statin g that “[o]ur guides remain

Skinner, Von Raab, and Vernonia .” Id . at 1302.

Before Chandler, it was already very clear that the present

case does not fit into the Skinner-Von Raab-Vernonia “Special

Needs” category. For the reasons previously discussed, the present

case is clearly disting uishable from other cases allowing

suspicionless searches or seizures in terms of the nature of the

intrusion, the magnitude of risks to human lives and property,

and/or the practicability of application of the reasonable

individualized suspicion test. Chandler confirms, however, that,

in the present case, the governmentally proffered special need for

suspicionless drug testing ha s not been demonstrated to be real,

substantial or sufficiently vital to su ppress “the Fourth

Amendment’s normal requirement of individualized suspicion[,]” I d

.

at 1300, 1303, when measured by “[o]ur guides... S kinner, Von Raab

,

and Vernonia.” Id . at 1303.

First, the state government in the present case has not

established by legislated law or legislatively authorized

government regulation an y need, system or procedure for the

suspicionless drug testing of phy sicians in hospital residency

programs. In S kinner, Von Raab and Vernonia

, the urinalysis tests55

were administered pursuant to well defined programs established by

governmentally promulgated regulations or written policy statements

based on documented needs, not by purely ad hoc decisions guided

only by untrammeled supervisory discretion, as in the present case.

In Vernonia

, the drug testing was also authorized by the written

consent of the parents of each student-athlete.

Second, there has been no demonstration here that public

safety is genuinely in jeopardy or that there is a critical and

immediate need to suppress the Fo urth Amendment’s normal

requirement of individualized suspicion.

Unlike the situation presented in Skinne r , the record here

indic ates that neither the government nor the medical school had

esta blished a drug-testing program of any kind for resident

physicians. Consequently, there were no regulations, guidelines or

procedures established for drug testing. Moreover, prior to the

state officer’s drug-test order, the medical school had undertaken

no systematic study of drug abuse by residents. Consequently, the

school had not established a documented link between drug abuse by

residents and any medical accident. Further, the record does not

reflect that residents participate in an industry that is regulated

pervasively to ensure safety; the practice of medicine, like that

of law, is a profession, which is largely self-governed by its own

ethical and disciplinary system. There was no indication of a

surpassing safety interest in guarding against the ri sk that

residents would cause loss of large numbers of human lives and

millions of dollars of property damage due to drug use before any

signs of impairment would become noticeable to supervisors. Of56

course, because there was no drug-testing program and no history of

drug-related medical accidents in the residency program, it cannot

be argued that any valuable medical data had been derived from

urina lysis. There was no evidence that the individualized

suspicion requirement for a drug test of resident physicians would

seriously impede the employer’s ability to identify and eliminate

or rehabilitate drug-impaired residents.

By the same token, the present case, in contrast with Von

Raab

, does not relate to the use of drug tests as a condition of

promotion or transfer. Also, of course, it does not involve

employees exposed to the vicissitudes of illicit drug smuggling and

interdiction, firearm usage, exposure to narcotics sources,

bribery, and blackmail.

Finally, the present case, which is quite distinguishable from

Vernonia, involves free adult physicians working and training in a

hospital resident program, not high school and junior high school

student athletes to whom the public school system owed a duty as

guardian and tutor to protect from moral corruption and physical

injury due to drug use during an immediate crisis caused by a sharp

increase in drug use in the school district.

In sum, under the current law, as under the clearly

established law at the time of the state officer mandated drug

test, the record in the present case is notably lacking in the

presentation of a c oncrete danger demanding departure from the

Fourth Amendment’s main rule that, to be rea sonable under the

F ourth Amendment, a search must be based on individualized

suspicion. See Chandler , 117 S.Ct. at 1303.57

Issues 2. and 3. The District Court Correctly Denied the State

Officers’ Motions For Summary Judgment And Judgment As A Matter Of

Law. The Officers Were Not Entitled To Qualified Immunity Because

A Reasonable Officer Would Have Known Th e Drug-Test Order Was

Unlawful Due To An Absence Of Reasonable Individualized Suspicion.

Under 42 U.S.C. § 1983, every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any state,

subjects, or causes to be subjected, any citizen of the United

States to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress. Therefore, when a state officer acts under

a state law in a manner violative of the Federal Constitution, he

comes in conflict with the superior authority of that Constitution,

and he is in that case stripped of his official or representative

character and is subjected in his person to the consequences of his

individual conduct. Scheuer v. Rhodes , 416 U.S. 232, 237 (1974)

Although § 1983 on its face admits of no immunities, the Supreme

Court has read it in harmony with general principles of tort

immunities and defenses rather than in derogation of them. I mbler

v. Pach tman , 424 U.S. 409, 418 (1976) In the absence of

congressional directions to the contrary, however, it is untenable

to draw a distinction for purposes of immunity law between suits

brought against state officials under § 1983 and suits brought

directly under the Constitution against federal officials. Malley

v. Briggs , 475 U.S. 335, 340, n. 2 (1986); Butz v. Economou , 438

U.S. 478, 504 (1978); Harlow v. Fitzgerald , 457 U.S. 800, 818, n.58

30 (1982).

The Supreme Court cases have generall y provided government

officials performing discretionary functions with a qualified

immunity, shielding them from civil d amages liability as long as

their act ions could reasonably have been thought consistent with

the rights they are alleged to have violated. Ande rson v.

Creighton , 483 U.S. 635, 638-639 (1987) (citing Malley v. Briggs

,

475 U.S. 335 (1986)); Mitchell v. Forsyth

, 472 U.S. 511 (1985);

Davis v. Scherer

, 468 U.S. 183 (1984); Harlow v. Filtzgerald 475

U.S. 800 (1982). Whether an official protected by qualified

immunity may be held personally l iable for an allegedly unlawful

official action generally tu rns on the “objective legal

reasonableness” of the action, assessed in light of the legal rules

that were “clearly established” at the time it was taken. A nderson

v. Creighton

, 483 U.S. at 639 (quoting Harlow

, 45 7 U.S., at 818-

819.

Moreover, the right that the official is alleged to have

vi olated must have been “clearly established” in a sufficiently

particularized and relevant sense: “ 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, see

Mitchell, supra

, 472 U.S., at 535, n. 12, 105 S.Ct., at 2820, n.

12; but it is to say that in the light of pre-existing law the

unlawfulness must be apparent. S ee, e.g., Malley, supra

, 475 U.S.,

at 344-345, 106 S.Ct., at 1097-1098; Mitchell, supra

, 472 U.S., at59

528, 105 S.Ct., at 2816; Davis, supra , 468 U.S., at 191, 195, 104

S.Ct., at 3017, 3019.” A nderson

, 483 U.S. at 639. (emphasis

added).

As demonstrated above, the clearly established law at the time

the state officers ordered the physician resident-trainee to submit

to an urinalysis drug test requ ired that the officers have

individualized reasonable suspicion that she had used illegal drugs

and that e vidence of such usage could be detected in her urine.

Therefore, the contours of the physician-resident’s Fourth

Amendment right were sufficiently clear that reasonable officials

would understand that before ordering the collection and analysis

of her urine, on pain of terminating her employment and residency

training, they must have reasonable individualized suspicion, i.e

.,

something more substantial than inarticulate hunches, that she had

consumed drugs and that evidence of that usage could be detected by

urinalysis.

Applying these principles, in the light of the pre -existing

la w a reasonable official would understand that ordering her to

submit to urinalysis violated her right to privacy because the

meager information available could no t give rise to a reasonable

individualized suspicion that her urine contained the evidence of

illegal drug usage. The doctors on the scene when she slapped the

unruly, amphetami ne-drugged patient immediately after he spat in

her face did not think her reaction was drug induced or influenced.

Approximately one month elapsed between this incident and the

officers’ order that she submit to a monitored urinalysis test or

be removed from the residency program. The record is devoid of any60

evi dence even slightly suggesting drug usage by her between the

slapping incident and the officers’ drug test ultimatum. Under all

of the circumstances, the absence of any basis for reasonable

ind ividualized suspicion and the resulting unlawfulness of the

officers’ drug test order were clearly apparent.

Issue 4. The Officers Failed To Preserve The Issue Of Insufficiency

Of Evidence To Support A Punitive Damages Award For Our Review

.

A post-verdict motion under Rule 50(b) for judgment as a

matter of law cannot be made unless a previous motion for judgment

as a matter of law was made by the moving party at the close of all

the evidence. Rule 50(b); In re Owners of “Harvey Oil Center ,” 788

F.2d 275, 278 (5th Cir. 1986); Quinn v. Southwest Wood Products

,

Inc., 597 F.2d 1018, 1024 (5th Cir. 1979). Because the defendantsa ppellants failed to move at the close of all the evidence fo r

judgment as a matter of law on the is sue of the sufficiency of

evidence as to punitive damages, that issue has not been preserved

for our review.