Suspicionless, Invasive Drug Testing Violates Fourth Amendment Protection Against Unreasonable Searches
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ORLANDO – The American Civil Liberties Union of Florida (ACLUFL) today announced it filed suit in federal court seeking to halt implementation of Florida’s new law mandating drug testing of applicants to the Temporary Assistance for Needy Families (TANF) program without suspicion of drug use.
The suit, filed Tuesday, September 6, 2011 in federal court in the Middle District of Florida, is on behalf of Luis Lebron, a 35 year-old Orlando resident, Navy veteran and full time University of Central Florida student. Lebron is a single father who applied for temporary assistance in July, 2011, to support his 4 year-old son. He meets all the criteria for assistance but has refused to waive his Fourth Amendment rights against unreasonable search and seizure and submit to the newly required drug test.
“I served my country, I’m in school finishing my education and trying to take care of my son,” Lebron said. “It’s insulting and degrading that people think I’m using drugs just because I need a little help to take care of my family while I finish up my education.”
In addition to caring for his son, Lebron is the sole caregiver for his disabled mother. He worked in accounting and payroll services in the United States Navy and held several private sector jobs in accounting and financial services before returning to school where he expects to graduate in December, 2011 with a degree in accounting.
The new drug testing law, state Statute 414.0652 (formerly 2011 House Bill 353), requires TANF applicants to submit to and pass a urine test for drug use before receiving assistance. The law also requires applicants to pay for the tests first (about $30-$35) and wait to be reimbursed by the state should they pass. A positive drug test will result in loss of benefits for one year. The law was passed on May 5, 2011, signed by Governor Rick Scott on May 31, 2011 and took effect July 1, 2011.
“This law violates more than the rights guaranteed by our Constitution – it violates basic American dignity and fairness by assuming that everyone who needs help is a lazy drug abuser,” said Howard Simon, Executive Director of the ACLUFL. “Ugly, disproven stereotypes make bad laws.”
By approving House Bill 353 (HB353), the Legislature and Governor Scott made Florida the first state in nation to require passage of a drug test for government assistance since a federal court in Michigan struck down a similar law in 2000 (Marchwinski v. Howard) because it violated the Fourth Amendment.
“Courts have allowed suspicionless drug testing by government in very few circumstances,” said ACLUFL Associate Legal Director Maria Kayanan and lead counsel in suit. “Those limited permissible circumstances involve areas in which public safety is at risk – testing railroad workers who operate dangerous equipment or border patrol agents who carry firearms and are involved in drug interdiction.”
The new law requires drug testing for every TANF applicant despite early results showing Florida TANF applicants use drugs at a lower rate than the population as a whole. Data from the Florida Department of Children and Families (DCF), which is responsible for implementing the law, shows that since testing began in July, 98% of TANF applicants taking the test passed.
A Florida pilot program in 1999-2000 which drug tested TANF applicants found a “failure” rate of about 5%. According to the 2009 National Survey on Drug Use and Health, performed by the U.S. Substance Abuse and Mental Health Services, 8.7% of the population nationally over age 12 uses illicit drugs.
“Floridians don’t lose their Constitutional rights because they need temporary assistance,” said Randy Berg, Executive Director of the Florida Justice Institute which is co-counsel in suit with the ACLUFL. “It doesn’t matter how popular it is to single out a group of people to make a political statement, the rights guaranteed by the Constitution apply to everyone – even poor people – and everyone has a right to be free of suspicionless government searches.”
Because the law is new, it is unclear whether the costs of paying for the 98% of tests which do not show drug use will exceed the savings of denying benefits based on failed tests. Early cost estimates do not include implementation costs, ongoing administrative obligations, re-testing requirements, legal challenges or any increase in applications for benefits since the law took effect. In June, 2011, before the required drug testing, 1,060 Floridians applied for TANF benefits. In July, 2011, after testing was required, 1,107 applied.
“Gov. Scott signed this unconstitutional requirement repeating talking points that Floridians have a right to know that tax dollars are not being used to subsidize drug addiction,” Simon said. “The fact that the legislation singles out only those seeking temporary assistance but not others who receive tax dollars demonstrates that this is really just about pandering to prejudice about poor people for political gain.”
The suit asks the court to declare the provisions of HB 353 unconstitutional and stop the state from requiring the drug tests. The suit names DCF Secretary David E. Wilkins, who is responsible for implementing the law, as defendant.
“I’m asking the Courts to protect my rights and the rights of other Floridians because this law treats me like a potential criminal for no reason at all,” Lebron said.
Editor’s Note: The suit filed yesterday was assigned to Judge Mary S. Scriven: The complaint is available here: http://www.aclufl.org/pdfs/ACLUTANFComplaint.pdf
The Motion for Preliminary Injunction is available here: http://www.aclufl.org/pdfs/ACLUTANFMotion.pdf
A copy of the 2000 federal court ruling from Michigan declaring a similar law unconstitutional is here: http://www.aclufl.org/pdfs/Marchwinski.pdf
About the ACLU of Florida The ACLU of Florida is freedom's watchdog, working daily in the courts, legislature and throughout Florida to defend individual rights and personal freedoms guaranteed by the United States and Florida Constitutions and the Bill of Rights. For additional information, visit our web site at: www.aclufl.org