Oral arguments heard in federal appeals court in AFSCME v. Scott, challenge to Gov. Scott’s executive order requiring employees submit to tests; lower court previously found program unconstitutional

CONTACT: ACLU of Florida Media Office, (786) 363-2737, media@aclufl.org

MIAMI – Today, the ACLU of Florida made its argument before the 11th Circuit Court of Appeals against Governor Rick Scott’s Executive Order requiring state employees to submit to invasive drug tests without any suspicion of drug use. In the case of AFSCME v. Rick Scott, the ACLU argued against the constitutionality of Executive Order 11-58, which a lower court had previously found violated the Fourth Amendment.

The 2011 Executive Order mandated all state employees and job applicants in executive branch agencies under the purview of the Governor (about 77% of the state workforce) submit to invasive tests of their bodily fluids, even if there was no suspicion of drug use. On Tuesday May 31, 2011, the ACLU of Florida filed a lawsuit challenging the order on behalf of the American Federation of State, County and Municipal Employees (AFSCME) Council 79, which represents 40,000 public workers who are subject to the suspicionless drug-testing program under the order. Following the challenge by AFSCME, Governor Scott suspended the order for all agencies except the Department of Corrections.

In April of 2012, U.S. District Judge Ursula Ungaro ruled that requiring state employees to submit to suspicionless, invasive searches without suspicion of drug use violated the Fourth Amendment’s ban on unreasonable searches. The state of Florida appealed that decision, and today’s arguments before the 11th Circuit were a result of that appeal.

The following statement on today’s oral arguments may be attributed to ACLU of Florida staff attorney Shalini Goel Agarwal, lead attorney in the case who argued for the plaintiffs in the courtroom today:

“We’d like to thank the judges of the 11th Circuit for the opportunity to present our argument that workers who serve the people of Florida maintain robust Fourth Amendment rights. Just as we did before the district court that first declared the policy unconstitutional, we argued that the Governor can’t order people to submit to an invasive, humiliating search of their bodily fluids without suspicion of wrongdoing. People shouldn’t have to sacrifice the protections of the Constitution just because they choose to work for the state.”

The following statement on the case may be attributed to Alma Gonzalez, Special Counsel, AFSCME Council 79:

“Not once, not twice, but three times Governor Rick Scott’s relentless quest for urine testing has been struck down in court and deemed unconstitutional. Today’s appeal is nothing more than a colossal waste of taxpayer money, and the court’s time.

“Public employees should not be subject to arbitrary testing without probable cause or consent, and no matter how many times Governor Scott wants to refight this old battle – the fact remains suspicionless mandatory bodily-fluid searches without cause are unconstitutional.”

The district court’s April 2012 decision halting drug testing under the Executive Order, which is the focus of the appeal, is available here: http://www.aclufl.org/pdfs/2012-04-26-ACLU-AFSCMEvScott.pdf

The ACLU’s brief responding to the Governor’s appeal in the 11th Circuit is available here: http://aclufl.org/resources/response-brief-appeal-afscme-v-scott/

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