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.
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.