M.D.Fla.: Florida’s drug testing of welfare recipients violates Fourth Amendment

Florida’s drug testing of welfare recipients violates the Fourth Amendment. Lebron v. Wilkins, 2013 U.S. Dist. LEXIS 182492 (M.D. Fla. December 31, 2013), on remand from Lebron v. Secretary, Florida Department of Children and Families, 710 F.3d 1202 (11th Cir. 2013) (posted here) (NYT: Florida Law on Drug Tests for Welfare Is Struck Down):

On remand, the State has offered no other characteristics of this population that would support a finding that they fall within the “closely guarded category” of individuals to be identified and subjected to routine, mandatory, warrantless searches that “intrude[ ] upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617.

Further, the State has not shown that suspicionless and warrantless drug testing is even necessary to address the State’s alleged concerns in this case. The Eleventh Circuit ruled as such when it stated:

TANF recipients, much like the elected officials in Chandler who often appear in the limelight of a public stage, are subject to regular oversight by Florida’s welfare officials as part of verifying their ongoing eligibility for the TANF program. They are certainly far more visible to Florida’s welfare officials than non-TANF recipient parents struggling with drug addiction. Accordingly, just as the Court in Chandler concluded that there was no reason why ordinary law enforcement would not suffice to deal with drug addicted elected officials, we see no reason why here, Florida welfare officials would not be able to address drug addiction through normal law enforcement methods when, and if, it manifests itself in a given TANF household.

Lebron, 710 F.3d at 1213 n.8 (internal quotations and citations omitted). Moreover, as the Eleventh Circuit stated, the State has failed to show that the general welfare of children is at greater risk absent its drug testing or that Florida’s children will be better protected because of mandatory testing of TANF applicants. As this Court stated in its preliminary injunction Order, even if a parent tests positive for drugs and is precluded from receiving TANF funds, the TANF program has no impact on the familial and custodial relationships of its would be participants.

. . .

In sum, the State has failed to show that the TANF program or its recipients in this case fall within the “closely guarded category” for which or for whom the Supreme Court has sanctioned mandatory, suspicionless drug testing. The State has also failed to show that the statute at issue in this case is otherwise necessary to alleviate the concerns raised by the State.

Accordingly, the Court’s analysis as to the constitutionality of the statute should end here. However, it seems in this case, the State is essentially asking the Court to apply the special needs exception to the Florida TANF population based upon the notion that perceived drug use within that population is itself sufficient to establish a substantial special need in this case. The State cites no authority to support its contention that a showing of pervasive drug use within an identifiable population is itself sufficient to suspend the constitutional rights of that entire population and subject that population to suspicionless, warrantless drug testing. The State persists in this stance even though the Eleventh Circuit has expressed considerable doubt that evidence of drug use within the Florida TANF population, would, in and of itself, suffice to establish a substantial special need for suspicionless, mandatory drug testing of that entire population. See Lebron, 710 F.3d at 1212 n.7, …

If the State were allowed to randomly drug test any population of individuals by simply showing evidence of disproportionate drug use within that population, the State’s exception would swallow the rule against warrantless, suspicionless drug testing.

If a geographic population were shown statistically to have more prevalent drug use, would persons in the geographic footprint be subject to testing? If persons in an economic demographic could be shown to have a higher rate of drug use, would all such persons in that economic group be subjected to drug testing? Even if such suspicionless testing as proposed by the State were limited to those persons receiving state funds, would college students receiving governmental assistance to subsidize their education, for example, be subjected to random, suspicionless drug testing if it could be shown that drug use is demonstrably higher among college students? The Supreme Court’s Fourth Amendment precedent would suggest not. Moreover, even if it were constitutionally palatable, no such showing of pervasive drug use among the Florida TANF population has been made on this record.