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Federal Judge Blocks Florida Welfare Drug Testing Law

Submitted by Phillip Smith on (Issue #706)

A federal judge Monday halted Florida's law mandating drug testing for welfare applicants. District Court Judge Mary Scriven in Orlando granted a temporary injunction barring the state from enforcing the law until the case is resolved.

The new law, which went into effect in July, was challenged as an unconstitutional violation of the Fourth Amendment's proscription against unwarranted searches and seizures in a lawsuit filed by the ACLU of Florida and the Florida Justice Institute on behalf of a Central Florida man. Luis Lebron, 35, a Navy veteran turned college student was denied state benefits after he refused to submit to a drug test.

In her order granting the temporary injunction, Judge Scriven thoroughly demolished the state's arguments that drug testing didn't amount to a search, that welfare applicants were more likely to use drugs than the population as a whole, and that the state had a special interest in drug testing welfare applicants that would override constitutional proscriptions against it. She also found that the ACLU of Florida has a good chance of prevailing in its lawsuit.

Scriven noted that Florida legislators passed the law despite an earlier Florida demonstration project that failed to uncover evidence of rampant drug use among welfare applicants, that concluded that drug use did not adversely impact the goals of the welfare program, that found that drug testing did not save the state money, and "despite the express recommendation that the project not be continued or expanded."

Scriven then turned to the state's contention that drug testing is not a search. "Notwithstanding the overwhelming body of case law to the contrary, the State contends that the drug testing of welfare recipients is not a search," she wrote. "According to the State, the drug test is not forced or compelled, and, if there is no consent to the testing, there is no drug test and, thus, no search… The Court finds this argument unpersuasive," she noted tersely.

Nor was she persuaded by Florida's claims about the risk to public health and the levels of drug use among welfare applicants. "Though the State speaks in generalities about the 'public health risk, as well as the crime risk, associated with drugs' being 'beyond dispute,' it provides no concrete evidence that those risks are any more present in TANF applicants than in the greater population," she noted. "Rather, the evidence suggests that those risks are less prevalent among TANF applicants. The Court, therefore, rejects the suggestion that the inchoate public health or crime risks assertions incanted by the State justify the Fourth Amendment intrusions mandated by [the drug testing law]."

Florida should have listened to its own researchers, whose earlier demonstration project found no evidence of widespread drug use among welfare applicants, Scriven wrote. "Florida gathered evidence on the scope of this problem and the efficacy of the proposed solution. The results debunked the assumptions of the State, and likely many laypersons, regarding TANF applicants and drug use. The State nevertheless enacted [the drug testing law], without any concrete evidence of a special need to do so -- at least not that has been proffered on this record. As the State has failed to demonstrate a special need for its suspicionless drug testing statute, the Court finds no need to engage in the balancing analysis -- evaluating the State's interest in conducting the drug tests and the privacy interests of TANF applicants."

The law requires applicants to pay for the drug test out of their own pockets -- those whose test clean would later be reimbursed by the state -- and bars them from benefits for a year unless they undergo drug treatment. So far, only about 2% of applicants have tested positive for drugs.

"I'm delighted for our client and delighted to have confirmation that all of us remain protected from unreasonable, suspicionless government searches and seizures," said Maria Kayanan, associate legal director of the ACLU of Florida, who is lead counsel in the case.

"The governor and the legislature sent their lawyers into court to advance a very startling proposition. They argued that some Floridians, namely poor families with children who qualify for temporary public assistance, are not protected by the Constitution of the United States," said ACLU of Florida executive director Howard Simon. "This extreme position -- that if the state provides assistance to someone it can conduct a privacy-invading physical search -- is especially startling coming from a governor who campaigned to stop government from trampling on the rights of the people."

"This should send a message to all lawmakers that the 4th Amendment protects everyone," said Randall Berg of the Florida Justice Institute and co-counsel with the ACLU.

Given that a number of states are currently considering hopping on the welfare drug testing bandwagon, Berg's comments are especially apropos.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Wink (not verified)

If it is perfectly alright and legal to drug-test job applicants, military members, emergency service providers, students participating in extra-curricular activities, etc., why is it suddenly a violation of the Constitution to test welfare recipients?   I doubt seriously this will stand up under appellate review.

Thu, 10/27/2011 - 5:33pm Permalink
Steve Newcomb (not verified)

Prohibition is highly abusable.  Anyone who has power or wealth may be tempted to exploit Prohibition to enhance their wealth or power.  The Florida legislators who voted for this horror succumbed to this temptation; they exploited Prohibition to bully and intimidate the very weakest Floridians, while persuading themselves that it would make their constituents more likely to vote for them, one way or another.  It has  the opposite effect on me.

If the rule of law were properly exploited by our leaders, they would defend it by deciding whether

  1. *everyone* will be drug-tested and the results publicly disclosed, or
  2. prohibition will be ended.

The rule of law is not well supported by our leaders.  The rich (i.e., those who have jobs to offer) and those who wield public power (i.e., the government, including but not limited to law enforcement) can, in effect, select who will be drug tested and what will happen to the information acquired thereby.  This is a gross imbalance that leads directly to discrimination against the poor. They find themselves on the wrong side of a one-way mirror, with the people on the other side of the mirror free to exploit the imbalance for any purpose, including but not limited to any selfish purpose.

If there must be way for the State to know personal information about its citizens and visitors, for example because of weapons technologies that allow any madman to inflict grievous harm upon innumerable others, then *everybody* *must*  be on *both* sides of that one-way mirror, both scrutinizing and being scrutinized.  Otherwise, we have an imbalance that leads directly to losses of civil rights, i.e., a form slavery that is beneath the dignity of a free people.

Hooray for the rule of law!  These days, that's kind of a radical thing to say, but one well worth saying, I think.  It would be nice to think that the American people are working to gain some integrity -- some sense that their actions and their words should be made to correspond to one another.  The deepening disparity between our laws and our actions is a challenge we must face.  Where our presently-illegal actions cannot be changed, then our laws should change.  Where existing law cannot be changed, then our actions should be made to conform to the law.  But in no case should our laws be applied unequally to different groups of people.  That's slavery.  It may not be race-based slavery, but it's still slavery.  Slavery is fantastically corrosive to our republic, and it's burdensome to our economy; we just can't afford it. 






Thu, 10/27/2011 - 10:48pm Permalink
stpnddg (not verified)

If our Founding Fathers had Known or even conceived that someday something you smoked ate or drank could be detected or identified in your urine or blood or spit, Body Fluids would have been mentioned in the constitution. We have in our body molecules called Endocannabinoids.  These molecules produce Cannabin (or Pot in a biological form).. somewhat But what they kickass at is processing Cannabis. We were made to smoke or eat or in some way consume Cannabis Get the Handbook by Ed Rosenthall. I am on Social Security Disability and Medicaid. I will Pee Clean but that is not the point. I will resist this. I'll "Pee in the cup" but they will "put work in"  hehe I have some issues due to Medications I am on. Medical Marijuana would so vastly improve my life I cannot even imagine the effect it would have on my life.    I think this Judge Is a man of the people and should be commended. .

Wed, 11/02/2011 - 1:21am Permalink

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