Tyrone G. Berry, Appellant v. District of Columbia, et al, 833 F.2d 1031 (D.C. Cir. 1987)

This action was instituted by Tyrone Berry against the District of Columbia ("District" or "D.C."), Mayor Marion Barry and several unknown police officers after Berry was arrested several times on drug charges in 1984.¹  Berry claimed that, during two of his arrests, he was unlawfully assaulted by several police officers, and that, following one of his arrests, he was denied a speedy presentment before a magistrate. Berry further claimed that, when money seized from him during these arrests was later made subject to civil forfeiture proceedings, notice of these proceedings should have been provided to his criminal defense attorney. In addition, Berry claimed that his constitutional rights were violated when he was ordered to submit to drug testing and treatment as a condition of pretrial release. The District Court granted summary judgment in favor of the District on the notice claim and the drug testing and treatment claim. The assault and presentment claims were dismissed because Berry's attorney failed to abide by the District Court's orders. On the record before us, we reverse and remand in part, and affirm in part.

First, because we find that the District Court failed to consider significant constitutional issues raised by the District's drug testing and treatment program, we reverse and remand on this claim. Second, because we can find no adequate basis on the present record to justify a dismissal of Berry's assault and presentment claims, we reverse and remand for further proceedings on these claims. Finally, we affirm the District Court's grant of summary judgment with respect to Berry's spurious notice claim.

On March 6, 1984, Berry was arrested on drug charges. The next day, a D.C. Superior Court Commissioner ("Commissioner") released Berry on his own recognizance on the condition that he submit to an immediate urinalysis drug test. If Berry tested positive, he was then supposed to participate in the drug testing and treatment program administered by the District's Pretrial Services Agency ("PSA"). Apparently, Berry did not submit to a drug test before he was released, and he did not report to the PSA for further tests or treatment.

On June 20, 1984, Berry was again arrested on drug charges. The next day, a Commissioner released him into third-party custody with the same conditions that followed his March arrest. This time Berry did submit to a urinalysis drug test, which was positive for cocaine and opiates. The PSA then instructed Berry to report for weekly drug tests. When Berry failed to report for his scheduled tests, the PSA notified the D.C. Superior Court that he had violated his conditions of release.²  After a show cause hearing was held on August 14 to determine whether Berry's bail should be revoked, Berry was released with the same conditions that followed his March and June arrests.³  He did not report for testing, however, and a bench warrant was issued for his arrest on August 24.⁴  At a hearing several weeks later, the D.C. Superior Court quashed the warrant and set a $2000 surety bond; Berry was unable to post bond and was jailed.⁵ 

On August 29, 1984, Berry filed this action in the United States District Court for the District of Columbia.⁶  Besides making several claims relating to his arrests,⁷  Berry claimed that the District's drug testing and treatment program violated his rights under the Fourth, Fifth and Eighth Amendments.⁸  In a memorandum order dated June 14, 1985, the District Court granted the District's motion for summary judgment with respect to this last claim. Berry v. District of Columbia, No. 84-2659, slip op. at 6-7 (D.D.C. June 14, 1985), R.D. 47.⁹  The District Court described Berry's arguments as "far-fetched," and stated that his claim did not present issues of "constitutional dimension." Id. at 6-7. The court merely noted that drug testing and treatment are reasonable conditions of pretrial release. Id.¹⁰  On September 5, 1985, the District Court dismissed Berry's remaining claims because Berry's attorney had failed to abide by the court's orders regarding the management of the case.¹¹ 

In his brief to this court, Berry argues that pre-arraignment drug tests administered to nearly all persons arrested in the District are unconstitutional. See Appellant's Brief at 15. Berry did not raise this issue in his amended complaint, however, and the record does not show that he ever submitted to a pre-arraignment drug test. Since Berry failed to raise this claim in the District Court, he may not assert it on appeal. See District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984) ("It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.").¹²  Therefore, we express no opinion on the validity of pre-arraignment tests performed in the District.¹³ B. Drug Testing and Treatment as a Condition of Pre-Trial Release

The District Court concluded that the District's pre-trial drug testing and treatment program ("testing program") does not raise issues of "constitutional dimension." Berry v. District of Columbia, No. 84-2659, slip op. at 7 (D.D.C. June 14, 1985), R.D. 47. We disagree. Mandatory urinalysis clearly implicates rights secured under the Fourth Amendment. This court and virtually all others that have ruled upon the constitutionality of compulsory urinalysis have held or assumed that it amounts to a "search" or "seizure" within the meaning of the Fourth Amendment.¹⁴ 

We are unable to pass judgment on the testing program, however, because the record with respect to this issue is virtually barren. As this court noted in National Federation of Federal Employees v. Weinberger, 818 F.2d 935, 942 (D.C. Cir. 1987) ("NFFE "), "the absence of a factual record militates against [reaching the constitutional issues], for it is clear that certain of the legal judgments yet to be rendered will hinge on findings of fact yet to be made with respect to the nature and scope of the drug testing program." There is no adequate factual record in this case because the District Court summarily concluded that appellant's claim did not raise issues of constitutional dimension. While the parties and amici curiae have attempted to furnish the essential details about the testing program in their submissions to this court, our review is limited to the information that was before the District Court. Because our review of the testing program "would be materially assisted by the development of a factual record and the district court's conclusion thereupon," Lucas v. Hodges, 730 F.2d 1493, 1501 (D.C. Cir.), vacated as moot, 738 F.2d 1392 (D.C. Cir. 1984), we reverse the grant of summary judgment on this claim and remand for a "full exploration" by the District Court. Wylie v. District of Columbia, 634 F.2d 1356, 1357 (D.C. Cir. 1980) (per curiam) (reversal required when summary judgment based upon incomplete record).¹⁵ 

Although we recognize that factual determinations must be made by the District Court, "we can provide some guidance for the task to be tackled on remand." NFFE, 818 F.2d at 942. We note at the outset that neither the District nor the United States, as amicus curiae, has argued that the drug tests in this case are not "searches" or "seizures." Moreover, as noted above, the great weight of authority holds that compulsory drug tests are "searches" or "seizures" within the meaning of the Fourth Amendment.

The Fourth Amendment inquiry is not at an end, however, with a finding that the pretrial drug tests constitute "searches" or "seizures," for the Fourth Amendment proscribes only unreasonable "searches" or "seizures." In determining the standard of reasonableness applicable to a particular type of "search" or "seizure," a court must balance "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." O'Connor v. Ortega, --- U.S. ----, 107 S. Ct. 1492, 1499, 94 L. Ed. 2d 714 (1987) (plurality opinion) (quoting United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110 (1983)); see also NFFE, 818 F.2d at 942.¹⁶ 

In the instant case, the District advances the following argument to justify its testing program: there is a positive correlation between drug use and the likelihood that an arrestee released on bail will commit crimes or fail to appear for scheduled court dates; it is therefore necessary to test certain arrestees to determine the likelihood of their using drugs when released on bail; when deemed necessary, a Commissioner may condition release on periodic drug testing and treatment; then, if users fail to comply with their conditions of release, they can be cited for contempt or have their bail revoked for failing to remain drug-free pending trial, thereby reducing the frequency of pretrial criminality or non-appearance. The critical assumption underlying the District's line of reasoning is that there is in fact a positive correlation between drug use and pretrial criminality or non-appearance. While we have no reason to doubt this assertion, there is nothing in the record to support it. On remand, the District must proffer reliable evidence, statistical or otherwise, from which the trial court can reasonably conclude that drug use makes it significantly more likely that an arrestee will commit crimes or fail to appear for scheduled court dates.¹⁷ 

Even if a significant, positive correlation is established, the District Court must also determine whether there is a reasonable basis for the apparent assumption that arrestees ordered into the testing program are potential drug users. See NFFE, 818 F.2d at 943 (quoting New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S. Ct. 733, 744, 83 L. Ed. 2d 720 (1985)). If the trial court finds that drug testing and treatment are only required when there is an individualized determination that an arrestee will use drugs while released pending trial, then the District's testing program will more likely than not be found reasonable. Individualized suspicion should be based on evidence of prior drug use, such as drug-related convictions¹⁸  or self-reported drug use.¹⁹ 

Different questions will arise if it is found that arrestees are compelled to participate in the testing program even in the absence of individualized suspicion of potential drug use. In its brief and at oral argument, the United States, as amicus curiae, asserted that an exceptionally large percentage of persons arrested in the District are current drug users who are likely to use drugs while released pending trial. See Brief of United States at 7. From this circumstance, and from the additional claim that there is no "less restrictive means [than urinalysis drug testing] by which drug use by arrestees can accurately be detected," id. at 29, the United States argues that individualized suspicion is not required. Id. We note, however, that " [e]xceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal...." T.L.O., 469 U.S. at 342 n. 8, 105 S. Ct. at 744 n. 8. Moreover, we do not know what the evidence on remand will show about drug use among arrestees. Therefore, we offer no judgment on this point.²⁰ 

Apart from whether the District's testing program is "justified at its inception," the District Court must also find that the testing program is "reasonably related in scope to the circumstances which justified the interference in the first place." T.L.O., 469 U.S. at 341, 105 S. Ct. at 744 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968)). In performing this analysis, the District Court "must consider the scope of the particular intrusion, the manner in which it is conducted ... and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447 (1979). Furthermore, the District Court must consider whether the District has taken adequate steps to prevent unnecessary disclosure of test results. See Shoemaker v. Handel, 795 F.2d 1136, 1144 (3d Cir.), cert. denied, --- U.S. ----, 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986). In short, the District Court must determine whether the testing program is "no more degrading than is reasonably necessary." Storms v. Coughlin, 600 F. Supp. 1214, 1222 (S.D.N.Y. 1984).²¹ 

In the course of three of Berry's arrests, money was seized from him which was later made subject to successful civil forfeiture proceedings in the D.C. Superior Court. See Defendants' Supplemental Answers to Interrogatories at p 11, R.D. 45. Berry claims that he was somehow denied due process under the Fifth Amendment, or his right to counsel under the Sixth Amendment, because notice of these proceedings was not provided to his criminal defense attorney.

This claim is without merit. We have not found any authority which suggests that the attorney for a defendant in a criminal case is entitled to receive notice of a separate, civil forfeiture proceeding. Due process requires notice "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950) (emphasis added).²²  Since Berry has not suggested that his attorney has any claim to the money seized, we agree with the District Court that Berry's attorney was not an "interested party" in the forfeiture proceedings who was entitled to notice.²³  Thus, the District Court's grant of summary judgment to the District on this claim is affirmed.

D. Dismissal of the Assault and Presentment Claims

After Berry's attorney failed to file a pretrial brief by the date specified by the District Court, Berry's remaining assault and presentment claims were dismissed. Berry v. District of Columbia, 107 F.R.D. 663 (D.D.C. 1985), R.D. 57. In the order of dismissal, the District Court noted that Berry's attorney had also failed to attend a status conference at the scheduled time, and had failed to file a pleading specifically requested by the court.²⁴ 

As the District virtually concedes in its brief, this court's decision in Shea v. Donohoe Construction Co., 795 F.2d 1071 (D.C. Cir. 1986), requires that the order of dismissal be reversed. In Shea, this court held that dismissal for attorney misconduct is warranted only when the misconduct severely prejudices the opposing party, places an intolerable burden on the judicial system, or has been approved in some manner by the attorney's client. Id. at 1074-79. Because there is nothing in the record to suggest that any of the Shea criteria were satisfied in this case, Berry's remaining claims should not have been dismissed. It was incumbent upon the District Court to consider measures less drastic than dismissal. Accordingly, we reverse the District Court's dismissal of the assault and presentment claims and direct that they be reinstated.

For the reasons stated above, we reverse the grant of summary judgment on the drug testing and treatment claim and remand to the District Court for proceedings not inconsistent with this opinion. Furthermore, we order that Berry's assault and presentment claims be reinstated. Finally, we affirm the grant of summary judgment with respect to the notice claim.

Because of their significant interest in this litigation and their invaluable assistance in briefing and arguing this appeal, both the United States and the Public Defender Service shall be accorded intervenor status during any further trial or appeal of the claim relating to the testing program.²⁵ 

So ordered.