Hensley v. Shaw et al

Filing 39

MEMORANDUM RULING re 22 MOTION for Summary Judgment filed by Pat Hensley and 23 MOTION for Summary Judgment filed by City of Shreveport, Willie Shaw. A judgment consistent with the memorandum ruling shall issue herewith. Signed by Judge Elizabeth E Foote on 3/30/2015. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
PAT HENSLEY

CIVIL ACTION NO. 13-2331

VERSUS

JUDGE ELIZABETH ERNY FOOTE

CITY OF SHREVEPORT, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court are cross-Motions for Summary Judgment, filed by the Plaintiff, Pat
Hensley (“Hensley”) and the Defendants, City of Shreveport and Police Chief Willie Shaw
(“Chief Shaw”). [Record Documents 22 and 23]. Both parties oppose the other’s motion
for summary judgment and have filed opposition and reply briefs accordingly. [Record
Documents 27, 28, 29, and 30].

For the reasons that follow, Hensley’s motion for

summary judgment is DENIED, while the Defendants’ motion is GRANTED.
BACKGROUND
The facts of this case are largely undisputed. On the afternoon of February 24,
2011, the Shreveport Police Department received a complaint that a Shreveport police
officer was operating a marked unit while intoxicated. The complainant explained that he
observed Hensley, a Shreveport police officer, banging on the door of a house; when the
banging went unanswered, he sat down on the porch. The complainant asked Hensley
what he was doing and did not believe Hensley’s explanation made sense.

The

complainant suspected Hensley was intoxicated. According to the complainant, Hensley

Page 1 of 20

then entered his marked unit and drove away, eventually stopping on the street where he
ultimately was approached by fellow Shreveport police officers.
Officers responding to the complainant’s call found Hensley standing near his
marked unit. Sergeant Sorrells was the first officer to approach Hensley, and she advised
him of his Miranda rights. When questioned, Hensley, who was off duty, denied having
consumed alcohol. Hensley told Sergeant Sorrells and other officers that he had been
trying to warn the resident of the house-- evidently a friend or acquaintance-- that the
person had outstanding warrants for his arrest. He also stated that he was on his way to
the gym. In talking with him, Sergeant Sorrells did not smell alcohol on Hensley’s breath,1
but she remarked that he was slurring badly and his eyes were “pinging.” Through the
audio presented to the Court, Sergeant Sorrells can be heard commenting several times
that the wind was blowing so briskly that she could not smell any alcohol.
Lieutenants Devries and Vishnefski also responded to the scene, and each
performed a Field Sobriety Test on Hensley. Lieutenant Devries could smell alcohol on
Hensley’s breath, although Hensley persisted in claiming he had not consumed any alcohol.
He stated that he had taken Nyquil earlier that afternoon. During the Field Sobriety Test
conducted by Lieutenant Devries, Lieutenant Devries noticed “extremely constricted”
pupils, which indicated the use of pain medicine.

Lieutenant Devries also observed

Horizontal Gaze Nystagmus, which is an indication of impairment. Hensley was unable to
1

Hensley disputes that Sorrells was unable to smell alcohol on his breath;
however, the video and audio recording taken by the various marked units’ Mobile
Video Recording Systems, clearly contradicts Hensley’s assertion. Record Document 23,
Ex. I.
Page 2 of 20

recite the alphabet or maintain balance while his eyes were closed and his head was tilted.
Upon Lieutenant Vishnefski’s testing, Hensley required two attempts to recite the alphabet
and showed both Horizontal and Vertical Gaze Nystagmus. On the recording, Lieutenant
Vishnefski remarks that he suspects Hensley has ingested pain medication of some type.
Record Document 23, Ex. I.
Hensley was arrested for Driving While Intoxicated, in violation of Louisiana Revised
Statute 14:98, and transported to the police station. There, after being advised of his
rights, Hensley refused to provide a sample of his breath or submit to any other tests.
He continued to deny any alcohol use. He was transported to the Shreveport City Jail for
processing.
Shortly thereafter, Chief Shaw initiated an administrative investigation and directed
Sergeant Deal of Internal Affairs to obtain samples of Hensley’s breath, urine, and blood
in order to test for drugs and alcohol. With the assistance of Sergeant Perkins, Sergeant
Deal picked Hensley up from the jail and transported him to Willis-Knighton Work Kare to
be tested. Hensley was handcuffed in the back of Sergeant Perkins’s unit, and the unit’s
video and audio recording system was activated. Once they pulled into the parking lot of
Work Kare, Sergeant Deal advised Hensley of his Garrity rights,2 specifically that anything
derived from the testing could not be used in a criminal proceeding against him. Hensley
was uncuffed before entering Work Kare. Work Kare could not perform the blood test, so
2

In Garrity v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967), the
Supreme Court held that statements made as a result of being forced to choose
between self-incrimination and the subsequent use of incriminating statements in a
criminal proceeding or loss of a public job are inadmissible.
Page 3 of 20

Sergeants Deal and Perkins transported Hensley to Willis-Knighton Pierremont Hospital.
Sergeant Perkins’s recording was still active upon arrival at the hospital. It is clear
from the recording that Hensley was not fond of needles and did not want his blood to be
drawn. The parties dispute whether Sergeant Deal advised Hensley that he had a right to
refuse the test. Sergeant Deal’s affidavit states, “I informed him that he could refuse to
provide blood, but because he was ordered by Chief Shaw to provide the samples, his
refusal could result in disciplinary action, up to and including termination.”

Record

Document 23-3, p. 5. Curiously, however, upon questioning at a Civil Service Board
hearing, Sergeant Deal was asked “Was Officer Hensley advised that he didn’t have to take
the blood test?” Record Document 22-2, p. 12. Sergeant Deal responded, “No.” Id. at
p. 13. She also testified that the Garrity form does not advise him that he has a right to
refuse the blood test. Id. at p. 12.
Hensley denies that he was ever advised of the right to refuse the test. However,
at a Civil Service Board hearing, he testified that while Sergeant Deal did not necessarily
inform him of his right to refuse, “I know what the consequences are to deny any part of
administrative-- . . .,” which implies that he knew he could refuse but doing so would have
consequences. Record Document 22-2, p. 22.
The recording provided by the Defendants, Record Document 23, Exhibit J, captures
Hensley’s pointed question to Sergeant Deal, inquiring whether he has to provide a blood
sample. On this recording, the Court can ascertain Sergeant Deal saying “no,” however
the remainder of her answer or explanation is inaudible. The audio then inexplicably cuts

Page 4 of 20

off after that exchange.3

Ultimately, the hospital performed the blood test, the results

of which were negative for known illegal narcotics. The parties agree that Hensley did
have alcohol in his bloodstream.
Hensley filed suit against the Defendants, contending that they violated his Fourth
Amendment rights and his rights under the Louisiana State Constitution when they
required him to submit to a blood test without a warrant. He also alleges that Chief Shaw
violated Louisiana Revised Statute 49:1015 by demanding a blood sample in the absence
of a written policy. The Defendants counter that there was no constitutional violation,
federal or state, that the state statute at issue was complied with, and that in any event,
Chief Shaw is entitled to qualified immunity. The instant cross-motions for summary
judgment followed.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 56(a) directs that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”4 Summary judgment is appropriate
when the pleadings, answers to interrogatories, admissions, depositions and affidavits on

Whether or not Hensley gave consent is a contested issue of fact, but for
reasons expressed below, the Court does not find it is a germane fact that will defeat
summary judgment.
3

4

Rule 56 was amended effective December 1, 2010. Per the comments, the
2010 amendment was intended “to improve the procedures for presenting and deciding
summary judgment motions and to make the procedures more consistent with those
already used in many courts. The standard for granting summary judgment remains
unchanged.” Therefore, the case law applicable to Rule 56 prior to its amendment
remains authoritative, and this Court will rely on it accordingly.
Page 5 of 20

file indicate that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548 (1986). When the burden at trial will rest on the non-moving party, the
moving party need not produce evidence to negate the elements of the non-moving party’s
case; rather, it need only point out the absence of supporting evidence. See id. at 322323.
Once the movant carries its initial burden, it is incumbent upon the non-moving
party to demonstrate the existence of a genuine dispute as to a material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986);
Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)(citations omitted). If the
motion is properly made, however, Rule 56(c) requires the nonmovant to go “beyond the
pleadings and designate specific facts in the record showing that there is a genuine issue
for trial.” Wallace, 80 F.3d at 1047 (citations omitted). This burden is not satisfied with
some metaphysical doubt as to the material facts, by conclusory or unsubstantiated
allegations, or by a mere scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994)(citations omitted). However, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505 (1985)(citations omitted); Reid v. State
Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)(the court must “review the
facts drawing all inferences most favorable to the party opposing the motion”).
Additionally, Local Rule 56.1 requires the moving party to file a statement of

Page 6 of 20

material facts as to which it contends there is no genuine issue to be tried. Pursuant to
Local Rule 56.2, the party opposing the motion for summary judgment must set forth a
“short and concise statement of the material facts as to which there exists a genuine issue
to be tried.” All material facts set forth in the statement required to be served by the
moving party “will be deemed admitted, for purposes of the motion, unless controverted
as required by this rule.” Local Rule 56.2.
I.

Alleged Violation of Louisiana Revised Statute 49:1015.
Louisiana Revised Statute 49:1015 provides, in pertinent part:
A public employer may require, as a condition of continued employment,
samples from his employees to test for the presence of drugs following an
accident during the course and scope of his employment, under other

circumstances which result in reasonable suspicion that drugs are being
used, or as a part of a monitoring program established by the employer to
assure compliance with terms of a rehabilitation agreement.

Any public employee drug testing shall occur pursuant to a written policy,
duly promulgated, and shall comply with the provisions of this Chapter.
La. R.S. 49:1015(A), (D)(emphasis added). The parties agree that these provisions
govern the Shreveport Police Department’s ability to test its employees for the presence
of drugs.
The thrust of Hensley’s argument, and in what could be viewed as a
misrepresentation to the Court, is that Chief Shaw violated La. R.S. 49:1015 because the
governing policy, SPD 305.09, “provides for urine testing and not blood testing.” Record
Document 22-1, p. 8. However, that misstatement is plainly contradicted by the record
evidence, specifically SPD 305.09(VI)(D), which, in combination with SPD 100.12, allows

Page 7 of 20

for a blood test to be conducted amidst allegations or suspicions of substance abuse.
Specifically, 305.09(VI)(D) provides that “[a]t any time the department is in receipt of
information (e.g., complaints or intelligence information) regarding the misconduct of a
member relative to substance abuse an internal investigation shall be initiated.

In

accordance with SPD 100.12, members shall submit to the appropriate test relative to the
detection of substance abuse.” Record Document 23-3, p. 11. SPD 100.12, in turn,
provides that “employees who are the subject of an administrative investigation shall
submit to any medical, physical, psychological, chemical or other tests . . . .” Record
Document 23-3, p. 15.
When directly confronted with these explicit substance abuse policies, Hensley
prevaricates, contending that the phrase “members shall submit to the appropriate test
relative to the detection of substance abuse” means that there is only one test that could
be performed; in his opinion, the only appropriate test was a breathalyzer. Hensley’s
assertion that the Defendants have failed to show that the blood test was performed
pursuant to a written policy is belied by the evidence. The Court finds that the blood test
was conducted pursuant to the written policies outlined above and was supported by
reasonable suspicion, which will be discussed in more detail below.
II.

Alleged Constitutional Violations.
Hensley’s next arguments focus on alleged violations of the Fourth Amendment and

the Louisiana State Constitution, both of which prohibit unreasonable searches and
seizures. Hensley’s primary claim is that Chief Shaw violated his constitutional rights when

Page 8 of 20

he demanded a blood sample without first obtaining a warrant. His second, though
related, argument is that Chief Shaw lacked reasonable suspicion of drug abuse sufficient
to justify the blood test.
The Fourth Amendment provides that the Government shall not violate “the right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. Searches conducted by
public employers are governed by the Fourth Amendment, even when those searches are
not used for the purposes of a criminal investigation. See O’Connor v. Ortega, 480 U.S.
709, 715, 107 S. Ct. 1492, 1496 (1987). In the instant case, the parties agree that the
blood test performed on Hensley constitutes a Fourth Amendment search. See Missouri
v. McNeely, 133 S. Ct. 1552, 1558 (2013)(“a compelled physical intrusion beneath [the]
skin and into [the] veins” is “an invasion of bodily integrity [which] implicates an
individual’s most personal and deep-rooted expectations of privacy”)(internal marks
omitted); Maryland v. King, 133 S. Ct. 1958, 1969 (2013)( “[v]irtually any intrusion into
the human body will . . . work an invasion of cherished personal security that is subject to
constitutional scrutiny”) (internal marks and citations omitted); Skinner v. Labor Exec.
Ass’n, 489 U.S. 602, 615, 109 S. Ct. 1402, 1412 (1989)(“We have long recognized that a
compelled intrusion into the body for blood to be analyzed for alcohol content must be
deemed a Fourth Amendment search”)(internal marks omitted).
Neither the Fourth Amendment nor Louisiana’s Constitution prohibits all searches,
rather, the Government is limited to “reasonable” searches. Thus, the touchstone of the

Page 9 of 20

constitutional inquiry is reasonableness.

Generally, to be deemed reasonable, the law

demands that a search be supported by a warrant, unless an exception to the warrant
requirement applies. Missouri, 133 S. Ct. at 1558. Even where a warrant is not required,
“a search must ordinarily be based on probable cause.” Nat’l Treasury Emp. Union v. Von
Raab, 489 U.S. 656, 667, 109 S. Ct. 1384, 1392 (1989). However, as the Supreme Court
has recognized, “the probable-cause standard is peculiarly related to criminal
investigations. . . . In particular, the traditional probable-cause standard may be unhelpful
in analyzing the reasonableness of routine administrative functions.” Id. at 667-68, 109
S. Ct. at 1392. Thus, “where a Fourth Amendment intrusion serves special governmental
needs, beyond the normal need for law enforcement,” a more individualized probe is
necessary to evaluate reasonableness, as “neither a warrant nor probable cause, nor,
indeed, any measure of individualized suspicion, is an indispensable component of
reasonableness in every circumstance.” Id., 109 S. Ct. at 1390-91.
This means that while a warrant and probable cause are often the starting points
in a Fourth Amendment analysis, there are circumstances where neither probable cause,
nor any individualized suspicion of wrongdoing, is required to uphold a search conducted
by the government. Such circumstances include “special needs, beyond the normal need
for law enforcement,” that is, circumstances where “concerns other than crime detection
. . . are alleged in justification of a Fourth Amendment intrusion . . . .” Pierce v. Smith,
117 F.3d 866, 873 (5th Cir. 1997).

Accordingly, based on the well-established precept

that a warrant is not an indispensable component of reasonableness, the Court rejects

Page 10 of 20

Hensley’s contention that, in the absence of exigency, a warrantless search of his blood
was per se unconstitutional. To the contrary, and for the reasons outlined below, the
Court finds that the blood test was constitutional because it was a search properly
supported by reasonable, individualized suspicion of wrongdoing, and, alternatively, it was
a suspicionless, special needs search.
A.

Individualized Suspicion.

In O’Connor v. Ortega, the Supreme Court carved out an exception to the warrant
requirement for certain work-related searches conducted by public employers. There, the
Court upheld the warrantless search of a public employee’s office where the search was
initiated to investigate charges of the employee’s work-related misconduct. 480 U.S. at
725-26, 107 S. Ct. at 1502. The Court created an exception to the warrant requirement
for “public employer intrusions on the constitutionally protected privacy interests of
government employees for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct . . . .” Id. at 725, 107 S. Ct. at 1502. As the
Court explained,
Even when employers conduct an investigation, they have an interest
substantially different from the normal need for law enforcement. Public
employers have an interest in ensuring that their agencies operate in an
effective and efficient manner, and the work of these agencies inevitably
suffers from the inefficiency, incompetence, mismanagement, or other
work-related misfeasance of its employees. Indeed, in many cases, public
employees are entrusted with tremendous responsibility, and the
consequences of their misconduct or incompetence to both 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. In our
Page 11 of 20

view, therefore, a probable cause requirement for searches of the type at
issue here would impose intolerable burdens on public employers. The delay
in correcting the employee misconduct caused by the need for probable
cause rather than reasonable suspicion will be translated into tangible and
often irreparable damage to the agency's work, and ultimately to the public
interest.
Id. at 724, 107 S. Ct. at 1501 (internal marks and citations omitted). Overall, such a
search is governed by a standard of reasonableness. Id. at 718, 107 S. Ct. at 1498.
Ultimately, in O’Connor, the state’s “individualized suspicion of misconduct” satisfied the
standard of reasonableness.
In United States v. Slanina, 283 F.3d 670, 679 (5th Cir. 2002), the Fifth Circuit Court
of Appeal held that O’Connor’s exception extended to a dual criminal-civil investigation of
work-related misfeasance conducted by a law enforcement employer. Citing O’Connor and
United States v. Simons, 206 F.3d 392 (4th Cir. 2000), the Fifth Circuit agreed that a
government employer does not “lose its special need for the efficient and proper operation
of the workplace merely because the evidence obtained was evidence of a crime.” Id. at
678. Requiring a law enforcement employer to obtain a warrant to investigate workrelated misconduct, which may also reveal evidence of a crime, was a burden the Fifth
Circuit explicitly declined to impose. Id. at 679.
In the instant case, it is undisputed that the blood test was ordered for
administrative reasons, pursuant to an internal affairs investigation. The evidence clearly
establishes that the results of the blood test could not be used against Hensley in any
criminal proceeding.

This search was a “special needs” search, as opposed to one

conducted for crime detection purposes.

Accordingly, as in O’Connor and Slanina,

Page 12 of 20

reasonable suspicion of work-related misconduct was sufficient to support the blood test.
The Court finds that reasonable suspicion of impairment did, indeed, exist. The
City’s own guidelines for reasonable suspicion include: the “[s]mell of alcohol or drugs on
the breath of the person;” “[d]isturbances in gait;” “[s]lurred speech;” and “[i]mpaired
motor control.” Record Document 23-3, p. 44. The evidence demonstrates that the
officers had reasonable suspicion to believe that Hensley was impaired based on the
behavior reported by the complainant; the smell of alcohol on his breath; his repeated,
unsuccessful attempts to recite the alphabet; his inability to maintain balance; and the fact
that he failed both the Vertical and Horizontal Gaze Nystagmus tests. Furthermore, he
falsely denied having taken anything other than Nyquil. The Court rejects Hensley’s
unsubstantiated contention that if reasonable suspicion existed, it only existed as to alcohol
impairment and did not exist as to any other sort of impairment. Quite simply, Hensley’s
conclusory assertion is contradicted by the record, as officers believed, based on Hensley’s
pupil constriction and other factors, that he was under the influence of pain medication.
The Court’s conclusion that reasonable suspicion supported the search, however,
is not the end of the inquiry, for the ultimate determination of reasonableness “depends
on the context within which a search takes place.” O’Connor, 480 U.S. at 719, 107 S. Ct.
at 1498 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 740 (1985)).
Hence, the 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.” Id., 107 S. Ct. at 1498-99 (internal marks omitted). “In the case

Page 13 of 20

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. As the Supreme
Court instructed in Chandler v. Miller, 520 U.S. 305, 318, 117 S. Ct. 1295, 1303 (1997), the
government’s proffered reason for drug testing an employee must be “important enough
to override the [employee’s] acknowledged privacy interest, sufficiently vital to suppress
the Fourth Amendment’s normal requirement of individualized suspicion.” “The analysis
of the privacy interest should include not only the desire to be free from mandatory
testing, but also the intrusiveness of the particular program at issue.” Aubrey v. School
Bd. of Lafayette Parish, 148 F.3d 559, 562 (5th Cir. 1998).
Here, the Shreveport Police Department has an overarching interest in and
responsibility for public safety. The Police Department and its employees are subject to
stringent regulations to ensure that those bearing the substantial burden of protecting our
society are fit for duty and up to the task. It cannot credibly be maintained that the
Defendants do not have a valid interest in ruling out drug or alcohol use as the cause of
its officers’ impairment, especially when those officers are operating marked police units
on public roadways. Not only do the Defendants have this interest in order to maintain the
efficiency and operation of their own workplace, but they have a duty, on behalf of the
public at large, to discover and investigate allegations of on-the-road impairment and to
protect the traveling public from the dangers presented by an impaired driver. Indeed, in
Skinner, the Supreme Court recognized as legitimate the government’s interest in ensuring

Page 14 of 20

the safety of the traveling public from impaired railroad workers. Skinner, 489 U.S. at 621,
628, 109 S. Ct. at 1415, 1419. The applicability of this proffered interest is bolstered by
established City of Shreveport policies governing substance abuse screening, which state
that the City
has a legitimate concern and responsibility to ensure that its workforce can
carry out its duty to the public in a safe manner. The concern for safety
includes the safety of the workers and the public.
...
It is City policy that City employees are to be free of the effects of any
substance that makes them a safety concern to co-workers or any others or
renders them unfit to perform their duties while at the workplace. It is also
City policy that City employees affected by substance abuse be afforded an
opportunity to seek appropriate and responsive treatment for identified
substance abuse disorders.
Record Document 23-3, p. 43.
Furthermore, it is well established that the government has a compelling interest
in ensuring the integrity of its law enforcement officers who interdict drugs and carry
firearms. Von Raab, 489 U.S. at 670–71, 109 S. Ct. at 1393. In Von Raab, the Supreme
Court explained that “Customs employees who may use deadly force plainly discharge
duties fraught with such risks of injury to others that even a momentary lapse of attention
can have disastrous consequences.” Id. at 670, 109 S. Ct. at 1393. Here, while there is
no evidence that Hensley faced the same types of dangers as the Customs employees in
Von Raab, the evidence nonetheless demonstrates that he was a law enforcement officer
authorized to carry a firearm. That he was not carrying one at the time of his arrest does
not negate the Defendants’ valid interest in ensuring that the public is not put at risk by
Page 15 of 20

the impairment of one of the City’s armed officers.
However, a significant, compelling, or weighty Government interest, alone, does not
justify a search. Maryland, 133 S. Ct. at 1977. Turning to the other side of the balance,
the Court must weigh the governmental interest against Hensley’s expectation of privacy.
The expectation of privacy “must be assessed in the context of the employment relation.”
Aubrey, 148 F.3d at 564

As the Supreme Court has explained, “certain forms of public

employment may diminish privacy expectations with respect to . . . personal searches.”
Von Raab, 489 U.S. at 671, 109 S. Ct. at 1394. In Von Raab, the Supreme Court found
that Customs employees who were required to carry firearms or interdict illegal drugs had
a diminished expectation of privacy “[b]ecause successful performance of their duties
depends uniquely on their judgment and dexterity, [and thus] these employees cannot
reasonable expect to keep from the Service personal information that bears directly on
their fitness.” Von Raab, 489 U.S. at 672, 109 S. Ct. at 1394. That finding applies with
equal force here.
The privacy concerns here, though not absent, are minimal. The possibility of a
drug test should have come as no surprise to Hensley. Hensley knew, by virtue of his
employment with the Shreveport Police Department and the regulations thereof, that this
intrusion could very well result under the circumstances he created. Indeed, SPD 100.37
prohibits off duty employees from operating or using departmental equipment while under
the influence of drugs or alcohol. Record Document 23-3, p. 45. Hensley acted in
disregard to that policy. He also knew that the City had a stated interest in ensuring its

Page 16 of 20

work force is free from impairment and substance abuse, in general. He knew that the
City implemented a random drug testing program, under which he, as a “sworn and/or
commissioned public safety employee[]” was subject to random screening. Accordingly,
the Court finds that Hensley’s expectation of privacy was diminished by these factors.
There is no allegation that the blood test was used to detect anything beyond
impairment. Thus, the test did not delve into a deeper level of privacy that Hensley may
have about his predisposition for or diagnosis of a specific disease, any hereditary factors
that he would not want his employer to know, or anything else. Quite simply, the blood
test was used to detect whether Hensley had ingested certain controlled substances. The
test was negative. The results demonstrate that no additional information, beyond the
detection of drugs, was gleaned from that test.
Finally, the Court finds that although Hensley disliked needles and the prospect of
having his blood drawn, a blood test is not unconstitutionally intrusive. As the Supreme
Court has held, “blood tests do not constitute an unduly extensive imposition on an
individual’s [personal] privacy and bodily integrity.” Skinner, 489 U.S. at 625, 109 S. Ct.
at 1417 (quoting Winston v. Lee, 470 U.S. 753, 762, 105 S. Ct. 1611, 1617 (1985)). In
fact, the Supreme Court has stated that “the simple blood-alcohol test is . . . safe,
painless, and commonplace,” South Dakota v. Neville, 459 U.S. 553, 563, 103 S. Ct. 916,
922 (1983), and “has become routine in our everyday lives,” Breithaupt v. Abram, 352 U.S.
432, 436, 77 S. Ct. 408, 410 (1957).
Balancing the Defendants’ interests against Hensley’s privacy interests, the Court

Page 17 of 20

finds that the Defendants’ interests outweigh the minimal intrusion on Hensley’s diminished
expectation of privacy. Accordingly, the Court holds that the drug test administered to
Hensley was constitutionally reasonable and did not violate his Fourth Amendment rights.
The Court similarly finds that the test did not violate Hensley’s rights under the
Louisiana Constitution.5 As previously articulated, the search was supported by reasonable
suspicion of impairment, was conducted pursuant to a state statute, was justified by a
legitimate interest, was reasonable in its scope and execution, and only minimally intruded
on Hensley’s diminished expectation of privacy.
Finding that the blood test was in compliance with the Fourth Amendment and was
done pursuant to an administrative investigation compels the conclusion that Hensley’s lack
of explicit, unambiguous consent does not render the test unconstitutional. Hensley was
advised of his Garrity rights and seemingly understood that he could refuse consent and
face the administrative, employment-related consequences for doing so. With this choice
in mind, he submitted to the blood test.
B.

Suspicionless Search.

The Defendants alternatively argue that the blood test was a constitutionally
permissible suspicionless special needs search.

The advent of suspicionless, yet

constitutional, drug and alcohol tests came in two seminal Supreme Court cases: Skinner
and Von Raab. In both of those cases, the Court concluded that the drug tests were

The Louisiana Constitution provides that “[e]very person shall be secure in his
person, property, communications, houses, papers, and effects against unreasonable
searches, seizures, or invasions of privacy.” La. Const. Art. 1, § 5.
5

Page 18 of 20

permissible without the usual protection of probable cause and a warrant, and even
without individualized suspicion, when they qualified as a special needs search. As the
Court has already discussed, special needs are those beyond the need for law enforcement
and outside the arena of crime detection. In Skinner and Von Raab, the suspicionless tests
were warranted based on the safety-sensitive tasks engaged in by the respective
employees when the “risk to the public safety is substantial and real.” Chandler v. Miller,
520 U.S. at 323, 117 S. Ct. at 1305. Suspicionless searches, that is, those conducted
without any particularized, individualized suspicion, have been upheld in “certain limited
circumstances,” Von Raab, 489 U.S. at 668, 109 S. Ct. at 1392, including: student
athletes, Vernonia School District 47J v. Acton, 515 U.S. 646, 650, 665-666, 115 S. Ct.
2386, 2389, 2396-97 (1995); Customs employees seeking a transfer or promotion to
certain positions, Von Raab, 489 U.S. at 659, 109 S. Ct. at 1387; railroad employees
involved in accidents or who violated particular rules, Skinner, 489 U.S. at 608-13, 109 S.
Ct. at 1408-11; school custodians performing groundskeeping and using cleaning
chemicals, Aubrey, 148 F.3d at 564-65; medical residents providing emergency medical
services to the public, Pierce, 117 F.3d at 880; and Public Works Department employees
who operate city vehicles, drive crew members, operate heavy groundskeeping equipment,
handle pesticides, and work in high-risk, high-traffic areas, Bryant v. City of Monroe, 593
F. App’x at 298-99.
Against this backdrop, the Court has no trouble finding that Hensley, as a law
enforcement officer carrying a firearm and operating a City vehicle, has a safety-sensitive

Page 19 of 20

position. That conclusion, along with the finding above that the blood test was reasonable,
compels the conclusion that the blood test would also be deemed constitutional even if was
done without individualized, reasonable suspicion.
The Court’s finding that there was no violation of Hensley’s constitutional rights
renders a discussion of qualified immunity unnecessary.
CONCLUSION
After careful consideration of the briefs and exhibits filed and for the foregoing
reasons, the Court finds that there are no genuine issues of material fact precluding
summary judgment in favor of the Defendants. Accordingly, IT IS ORDERED that
Hensley’s motion for summary judgment [Record Document 22] be and is hereby
DENIED, while the Defendants’ motion for summary judgment [Record Document 23] be
and is hereby GRANTED. All of Hensley’s claims against the Defendants are DISMISSED
WITH PREJUDICE. A judgment consistent with the instant memorandum ruling shall
issue herewith.
THUS DONE AND SIGNED this 30th day of March, 2015 in Shreveport, Louisiana.

Page 20 of 20