Full opinion text
OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT BRAZIL, United States Magistrate Judge. I. INTRODUCTION Plaintiff Teresa Hansen was subjected by her employer, the California Department of Corrections (CDC), to drug testing involving direct visual observation of urination. Hansen is suing the CDC, its director at the pertinent time, the warden of the facility in which she worked, and the officers who administered the drug testing, alleging violations of the Fourth Amendment, the federal constitutional right to bodily privacy, and the California Constitution’s right to privacy. Defendants claim immunity under both federal and California law. Both sides have filed cross-motions for summary judgment. While we believe that the U.S. Constitution probably prohibits direct observation of urination during drug testing absent reasonable, individualized, and articulable suspicion of an intent to tamper with the urine sample, we grant summary judgment to defendants regarding Hansen’s federal claims on qualified immunity grounds, for the law governing Hansen’s federal claims was not “clearly established” at the time defendants’ conduct took place. We reject the immunity claims of two of the defendants (the officers who administered the drug testing) under California law, because these two defendants were not exercising discretion but simply following a policy set by others when they required the drug testing to be directly observed. We are unable to determine from the record before us whether two other defendants (the director of the CDC and the warden at the facility where Hansen worked) are protected by immunity under California law. When we reach the merits, we find that defendants’ drug testing procedures violated the California Constitution’s right to privacy. We therefore grant summary judgment on the issue of liability (as opposed to the amount of damages) on Hansen’s California law privacy claim against the two defendants found not to be immune. II. FACTS Hansen is a female CDC correctional officer stationed at a correctional facility called CTF-Soledad (Soledad). See Defendant’s Statement in Opposition to Plaintiffs Statement of Undisputed Material Facts (DSO) ¶ 1. In addition to CDC, Hansen is suing four CDC officers in their official and individual capacities: James Gomez, CDC’s director at the time the drug testing giving rise to this action took place; Daniel Vasquez, Sole-dad’s warden.during some of the time that the drug testing took place; Edward Russel, an investigative captain at Soledad at the time of the drug testing; and Robert Kim, a sergeant at Soledad at the time of the drug testing. DSO ¶ 3. Hansen has been employed by CDC for more than eight years. DSO ¶ 1. Hansen has regular contact with inmates; one of her responsibilities is supervising a work crew of about ten inmates. Hansen Dep. at 229. In October 1993, Hansen revealed to Russel, the investigative captain, that she had used marijuana (in an off-duty setting) on one occasion during the time she was employed at CDC and that she had used cocaine on several occasions many years earler, before the beginning of her employment at CDC. DSO ¶¶ 6-8. CDC took an “Adverse Action” against Hansen, which, among other disciplinary measures, required Hansen to submit to random drug testing for a one-year period. DSO ¶ 10. Hansen signed an agreement to voluntarily submit to random drug testing from January 18,1994, through January 18, 1995. DSO ¶ 11. This agreement provided that the drug testing would be conducted in accordance with guidelines set forth in the eoleetive bargaining agreement between CDC and the correctional employees’ union. DSO ¶ 11. The eoleetive bargaining agreement in question, referred to by the parties as the Memorandum of Understanding (MOU), contains the folowing provision: During the term of this agreement, the State agrees to study the need to retain direct observation of the employee providing the urine sample, and wil meet and confer with CCPOA [the employees’ union] upon completion of the study, or upon CCPOA request. The State and CCPOA may also mutualy agree to modify this section in response to new technology or other improved procedures. See Plaintiffs Response to Defendants’ Statement of Undisputed Material Facts in Support of Defendants’ Motion for Summary Judgment (PRD) ¶ 39 (emphasis added). The MOU does not contain any other provision that aludes to direct observation of drug testing. See Defendants’ Response to Plaintiffs Statement of Additional Undisputed Material Facts in Opposition to Defendants’ Motion for Summary Judgment (DRP) ¶4. In the negotiations of the MOU, the employees’ union objected to direct visual observation of urination during drug testing, threatened to sue CDC if direct observation continued, and never explcitly agreed to direct observation. DRP ¶¶ 1-3. Defendants have presented evidence that would support an inference that the union negotiators understood, at the time the MOU was signed, that the CDC intended to continue using direct observation of urination during drug testing of prison employees, even though there was no provision in the MOU expressly authorizing such direct observation. DRP ¶ 4. The drug testing was administered by defendant Kim, the sergeant. Before the first drug test, Kim and Russel discussed the drug testing procedure and Russel told Kim that direct observation of urination was required by polcy.. Kim Dep. at 14-16, 19; Russel Dep. at 14, 19. The first drug test occurred on February 9, 1994. Prior to the administration of the test, Kim informed Hansen that the testing procedure would involve direct observation of Hansen’s urination by a female medical technician. Hansen objected to the direct observation, and stated to Kim that a union representative had told her that she would not be subject to direct frontal observation of urination. Kim Dep. at 29. Kim ordered Hansen to undergo the testing under direct observation, and Hansen’s urination was directly observed by a female monitor. DSO ¶¶ 13-17. After the first drug test, Hansen discussed her objection to the direct observation, as well as other concerns about the drug testing procedure, with a union representative. The union representative discussed Hansen’s objections with Vasquez, the warden. Rafferty Decl. at 2. Vasquez communicated with a superior, CDC’s acting regional administrator, who told him that CDC policy requires direct frontal observation. Vasquez Dep. at 19-20, 45. The record before us does not disclose what, if anything, Vasquez did with this information. We have not seen evidence, for example, that Vasquez then communicated to Russell and/or Kim that they were to make sure that direct observation remained a part of the testing of plaintiff. After the first drug test, Kim and Russell discussed (with one another) Hansen’s objections to direct observation, but did not consider making an attempt to have the direct observation policy changed. Russell Dep. at 39-40. Hansen underwent additional drug tests on April 5, May 26, July 12, and August 19, 1994. DSO ¶ 22. In each of these drug tests, Hansen’s -urination was directly observed by a female monitor. DSO ¶ 23. Vasquez, Russell, and Kim each testified in depositions that CDC policy requires direct observation of urination during drug testing of employees. PRD ¶¶ 25, 36. Each of these three defendants also testified that their implementation of the drug testing procedures used on Hansen was in accordance with that policy. PRD ¶ 36. Each of the three also testified that they believed that a written policy exists which requires direct observation. Kim Dep. at 34-38; Russell Dep. at 18; Vasquez Dep. at 17. No written policy about direct observation has been presented to this court; we do not know whether defendants have turned over such a policy to plaintiff. There is evidence in the record suggesting that, at the time of the events at issue, there was a statewide California Department of Personnel Administration (DPA) policy requiring direct observation of urination during employee drug testing. See Russell Dep. at 18. Vasquez testified that the direct observation policy was probably communicated to him some time before Hansen’s drug testing began. Vasquez Dep. at 17. Vasquez testified that the drug testing of Hansen was conducted under his authority. Vasquez Dep. at 36. Plaintiff and defendants agree that Vasquez and CDC director Gomez are responsible for implementing the policies of the CDC. DRP ¶ 5. However, there is no evidence in the record that Vasquez ever directly instructed Russell or Kim that CDC policy requires direct observation of employee urine testing or that direct observation should be used when testing Hansen. In addition, Gomez’s deposition has not been taken, and there is no evidence in the record as to whether Gomez played a role in the formulation of the direct observation policy or whether Gomez only implemented a policy set by the DPA III. PROCEEDINGS In October of 1994 Hansen filed a complaint for damages and injunctive relief against CDC, Gomez, Vasquez, Russell, Kim, and another defendant who has since been dismissed from the suit. The complaint names Gomez, Vasquez, Russell, and Kim in both their official and their individual capacities. The complaint contains seven claims: (1) a damages claim under 42 U.S.C. § 1983 (1988) based on an unlawful search; (2) a damages claim under 42 U.S.C. § 1983 based on a violation of the federal constitutional right to bodily privacy; (3) a damages claim under 42 U.S.C. § 1983 based on failure to train or supervise; (4) a damages claim under California law based on a violation of the California Constitution’s right to privacy; (5) a California common-law intentional infliction of emotional distress claim; (6) a California common-law negligent infliction of emotional distress claim; and (7) a request for temporary and permanent injunctive relief. In October 1994, District Judge Robert P. Aguilar issued a temporary restraining order prohibiting direct visual observation of Hansen’s urination during drug testing. Hansen v. California Department of Correction, 868 F.Supp. 271, 274 (N.D.Cal.1994). In December 1994, the parties stipulated to a preliminary injunction prohibiting visual observation of Hansen’s urination. In July 1995, the case was reassigned to District Judge Eugene F. Lynch. With the parties’ consent, the case was reassigned to this court in August of 1995. In November of 1995 defendants filed a motion for summary judgment, and plaintiff filed a cross-motion for partial summary judgment. Defendants argue that summary judgment should be granted to them on Hansen’s federal claims on the grounds of qualified immunity, or, alternatively, because the federal claims are substantively without merit. Defendants also argue that California statutory immunity law bars Hansen’s California law claims. Defendants further contend that the Eleventh Amendment bars Hansen’s claims against the individual defendants in their official capacities, as well as Hansen’s California law claims against CDC. In addition, defendants contend that the Eleventh Amendment and California statutory law bar a punitive damages claim by Hansen against CDC. Finally, defendants argue that Hansen’s claim for injunctive relief is moot. Hansen moves for summary judgment on the issue of liability on each of her three federal claims. She also moves for summary judgment on the issue of liability on her California law privacy claim. IV. FEDERAL LAW CLAIMS A. Qualified Immunity Law — Generally 1. Is the Defense of Qualiñed Immunity Potentially Available to All Four of the Individual Defendants? Under the doctrine of qualified immunity “government officials performing discretionary functions[] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). According to Foster v. McGrail, 844 F.Supp. 16, 23 (D.Mass.1994), “[precedents ... support a ... meaning for ‘discretionary function’ that includes not only a high level decision formulating a directive but also lower level administration of the directive, at least when some discretion must be exercised in the administration and enforcement.” In this case, however, the record indicates that defendants Vasquez, Russell, and Kim did not exercise any discretion in requiring direct observation of Hansen’s urine test, but were merely following a policy set at a higher level. The record is silent about whether defendant Gomez exercised any discretion in requiring direct observation during all CDC employee drug testing or whether he only implemented a policy handed down to him by the DPA. We believe that the correct rule of law in such a situation is that a public official should be immune from liability for non-discretionary acts performed in good faith pursuant to a policy instituted by higher authorities unless a reasonable official would have known that the policy was unconstitutional. Two published opinions support this proposition. In Gonzalez v. Tilmer, 775 F.Supp. 256, 258 (N.D.Ill.1991), a police officer detained a suspect for forty-eight hours without a determination of probable cause. A general order of the city police department permitted such long detention under the circumstances at issue. Id. at 265. Though the police department’s policy was later declared unconstitutional, the court granted immunity to the police officer. Id. at 265-66. The court explained that “[a]n officer who is following a statute or administrative rule should generally be accorded qualified immunity for his actions unless a reasonable officer should have known that the law or rule in question was unconstitutional.” Id. at 266 (citing Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir.1988)). In Pray v. City of Sandusky, 49 F.3d 1154 (6th Cir.1995), a city police department policy required police officers executing a warrant to secure the premises being searched by placing all occupants on the floor. While the majority opinion did not address the impact of the policy in deciding the immunity issues raised in that case, a concurring judge stated that “[t]he officers are entitled to immunity for all their non-diseretionary acts performed in good faith pursuant to the policy.” Id. at 1161 (Batchelder, J., concurring) (citing Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985)). These opinions are supported by the common-sense notion that, absent some assured statutory protection from another source, it would be unfair to subject an official to liability for following orders or policies which he has no authority, under the terms of his employment, to alter or ignore — unless, of course, a reasonable official should have known that the orders or policies offended established law. Moreover, exposing officials to liability in such situations could give them incentives not to follow directives given by superiors. This would be bad public policy because it could hamper the smooth and effective operation of government. Cf. Scheuer v. Rhodes, 416 U.S. 232, 241-42, 94 S.Ct. 1683, 1689, 40 L.Ed.2d 90 (1974) (“[pjublic officials ... who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices”) (emphasis added). For these reasons, we hold that all four individual defendants are immune if a reasonable official would not have known that applying the direct observation policy in the circumstances of this case would violate clearly established law. 2. What Does the Phrase “Clearly Established” Mean in This Setting? Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), provides detailed guidance for ascertaining whether law is “clearly established” for purposes of qualified immunity. In Anderson, the Court explained that “the operation of [the ‘clearly established’] standard ... depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Id. at 639, 107 S.Ct. at 3038-39. If the “clearly established” standard were to permit rights which officials are accused of violating to be described in overly general terms, officials would not receive immunity in some situations where a reasonable official would not have known that the plaintiffs rights were violated. Id. For this reason, the Court set forth the following test for determining whether a right is clearly established for qualified immunity purposes: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Id. at 640, 107 S.Ct. at 3039 (citations omitted) (emphasis added). On a number of occasions the Court of Appeals for the Ninth Circuit has elaborated on how to correctly apply the rule set out in Anderson. “A right can be clearly established even though there is no binding precedent in this circuit.” Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). “ ‘[T]he law simply does not require that we find a prior case with the exact factual situation in order to hold that the official breached a clearly established duty.’” Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir.1995) (quoting Alexander v. Perrill, 916 F.2d 1392, 1397 (9th Cir.1990)). “Thus, when ‘the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.1994) (quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir.1993)). “Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established.” Lum, 876 F.2d at 1387. “We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result as courts that had already considered the issue.” Id. “Government officials are charged with knowledge of constitutional developments, including all available decisional law.” Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). However, the Ninth Circuit does not “require of most government officials the kind of legal scholarship normally associated with law professors and academicians.” Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). With these principles in mind, we turn to an examination of whether qualified immunity bars Hansen’s claim that she is entitled to damages on the grounds that the direct observation of her urination was an unreasonable search under the Fourth Amendment. B. The Fourth Amendment Claim 1. The Doctrinal Setting — Generally. The law generally governing the application of the Fourth Amendment to urine drug testing is set forth in two Supreme Court cases which were published on the same day, Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). In Skinner, a union challenged federal regulations providing for drug testing of railroad employees if they are involved in an accident, if they commit certain safety violations, or if there is reasonable suspicion of on-duty alcohol or drug use. 489 U.S. at 609-11, 109 S.Ct. at 1408-10. The Court first held that urine drug testing is a search under the Fourth Amendment. Id. at 617, 109 S.Ct. at 1413. The Court then stated that the Fourth Amendment prohibits only unreasonable searches, id. at 619, 109 S.Ct. at 1414, and went on to balance the Fourth Amendment privacy interests of employees against the government interests supporting drug testing. See id. at 619-33, 109 S.Ct. at 1414-21. The Court stated that employees who work in a highly regulated industry such as railroads have a diminished expectation of privacy, id. at 627, 109 S.Ct. at 1418, and upheld the challenged regulations. Id. at 633, 109 S.Ct. at 1421. In Von Raab, the Court stated that “where a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement,” such as public safety, “it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion.” 489 U.S. at 665-66, 109 S.Ct. at 1390-91. The court “balanced the public interest” in the drug testing program challenged in the case “against the privacy concerns implicated by the [drug] tests.” See id. at 679, 109 S.Ct. at 1398. Under the guidance of these important Supreme Court precedents, lower federal courts have elaborated the controlling balancing analysis, refining our thinking about the magnitude of the various privacy interests that can be invaded by different approaches to testing, about factors affecting the reasonableness of expectations of privacy in different settings, about the relative importance of various governmental interests that testing can serve, and about how much those interests are likely to be advanced by particular testing regimens. As the cases have addressed new situations, it has become more apparent that the balancing test often is a subtle undertaking, requiring exercises of judgment and discrimination that are not always self-evident or self-executing — and therefore not always predictable with confidence. This fact about the doctrinal landscape in early 1994 is of some significance in our analysis of the parties’ competing contentions about the availability of qualified immunity to the defendants. It is more difficult, generally, to predict the outcomes of eases that turn on balancing analyses than the outcomes of cases that turn on some other kinds of tests, such as the compelling state interest test or the rational basis test. Cf. Stanziale v. County of Monmouth, 884 F.Supp. 140, 145 (D.N.J.1995) (observing that “[although it has been clearly established that courts must use a balancing test to determine the constitutional validity of a drug testing program, it certainly is not clear just how that delicate balancing is to be performed”). This is true, in part, because it often is difficult to know, in advance, how much weight (value) given judges will ascribe to competing interests, as well as what their views will be about how much a given governmental measure contributes toward the achievement of its purported ends. To some extent, these kinds of judgments are subjective and turn on the political values or perspectives of the judges. And it is not often that the courts are provided scientifically reliable studies that assess how well challenged governmental measures actually work (how much of the desired effect they deliver). None of this is to say, of course, that governmental defendants will always enjoy qualified immunity whenever (1) the courts use a balancing test to resolve the issue in question and (2) at the time the challenged conduct occurred, the courts had not addressed, squarely, the lawfulness of that particular course of governmental action. In some settings, the outcome even of balancing tests will be fully foreseeable from the precedents. But in other settings, as here, the courts’ use of this kind of analysis will reduce predictive certainty. We also must bear in mind, from the outset, that not all judicial opinions lend themselves to only one rational interpretation or reading. As we shall see, below, some of the cases that are most important to our disposition of the qualified immunity defense in this action send some ambiguous messages — leaving room for reasonable minds to disagree about their implications for situations not squarely addressed. In settings like these, we are constrained to try to identify the zones or ranges of reasonable interpretations of the cases — and to reject a defendant’s view of what the state of the law was (and what questions the law, fairly read, left open) only if that view is based on an interpretation of the authorities that falls fairly clearly outside that zone or range. Stated differently, if there are reasonable, not insubstantial bases in the authorities for disagreement about what the law was or would be in the situation in the case at bar, we should not hold that the law was “clearly established.” If, rationally, what the state of the law was is a close question, the law cannot be deemed “clearly established” for purposes of qualified immunity. Another complicating factor about the area of doctrine we explore in detail below is the dynamic variability, in different settings, of the weights of the competing factors in the balancing analysis. While the courts uniformly recognize that, in the abstract, the privacy interest invaded by direct observation of urination is of great magnitude, they also acknowledge that how much privacy employees can legitimately expect can vary considerably from job to job or situation to situation. Thus, under the authorities, the same governmental act can result in a deep invasion of privacy for a person with one set of legitimate expectations but a much lesser invasion for a person whose situation reasonably gives rise to appreciably lower expectations of privacy. As a result, the extent of the harm to the privacy interest (i.e., the weight of the interests on the plaintiffs side of the scales) can vary dramatically with the relative sensitivity of the job that the plaintiff holds. Similarly, the weight of the interests on the government’s side of the scales is not static, but can vary considerably. It can be dramatically affected, for example, by the same relative sensitivity of the plaintiff’s job. It also can grow or shrink with the presence or absence of reasonable suspicion — and with the relative firmness of the basis for such suspicion. Moreover, there can be at least three separate targets of reasonable suspicion: (1) drug use on the job, (2) drug use off the job, and (3) that the employee will tamper with the urine sample or otherwise try to compromise the reliability of the drug testing. Thus the predictability of doctrinal development is further clouded by the fact that the pertinent balancing analysis could be affected by so many variables, as well as the fact that the weights of some of the variables are interdependent (in some settings, an increase in the weight of one variable necessarily results in a reduction in the weight of a competing variable). In the sections that follow, we review first the case law that favors plaintiffs position on the immunity issue, then the case law that favors the position taken by the defendants. The spirit or tone of the cases on which plaintiff relies most heavily, especially Judge Mikva’s opinion in National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990), is clearly inhospitable, generally, to direct observation of urination during drug testing. But neither that case nor any other confronts squarely the situation in the ease at bar: where the government could try to justify the direct observation on the basis of both reasonable suspicion of drug use by a specific employee and the fact that she worked in a clearly sensitive position. Thus, at the time of the drug tests that plaintiff challenges here, there were no literally controlling authorities. Moreover, as we shall see, there was language in even the most favorable opinions that arguably left the door open to approval of direct observation in situations like the one at bar. When, against this backdrop, we add to the doctrinal mix the cases that appear to favor the defendants’ position, we simply cannot conclude that the right that plaintiff contends was violated by the direct observation was “clearly established.” 2. Case Law Favoring the Plaintiff's Position. The case on which plaintiff relies most in support of her argument that defendants violated clearly established Fourth Amendment rights is Yeutter, 918 F.2d 968. In that opinion, the Court of Appeals for the District of Columbia Circuit applied the balancing test that the Supreme Court prescribed in Skinner, 489 U.S. at 619-33, 109 S.Ct. at 1414-21, and Von Raab, 489 U.S. at 665-66, 109 S.Ct. at 1390-91. At issue in Yeutter were several components of a drug testing program in the Food and Nutrition Service (FNS) of the United States Department of Agriculture (USDA). One of these components subjected all FNS employees to reasonable suspicion drug testing and mandated direct observation of urination for all reasonable suspicion drug testing (regardless of the level of sensitivity of the job of the particular employee). Yeutter, 918 F.2d at 972, 975. The court struck down this component of the drug testing program, stating that it could “discern no weighty government interest in observation that counter-balances its intrusion on employee privacy.” Id. at 975. The court noted that alternative procedures exist which are less intrusive but still are effective in preventing cheating on drug testing. Id. at 976. The court rejected the argument implicit in the USDA’s testing program that reasonable suspicion of drug use is sufficient by itself to create reasonable suspicion that the tested employee will attempt to tamper with the sample. Id. at 976-77. The court ordered the district court to “enjoin appellees from requiring visual observation of urination whenever an employee is ordered to undergo reasonable suspicion testing, and from authorizing observation of urination during reasonable suspicion drug tests absent an individualized determination that visual monitoring is warranted.” Id. at 977. The court stated, “It is implicit in our holding ... that indications of drug use sufficient to warrant reasonable suspicion testing will not necessarily establish a legitimate need to observe urination in all instances.” Id. at 976 (emphasis added). The limited nature of the emphasized language, and several other features of the Yeutter opinion, could lead a reasonable person to conclude that Yeutter does not compel the conclusion that direct observation in the circumstances challenged by the plaintiff in the case at bar would offend the Fourth Amendment. Our goal here, of course, is not to identify what we believe is the most accurate reading of Yeutter, or to identify the most likely implications of that case for the situation at bar. Rather, our goal is to determine whether rational (and legally informed) minds could conclude, in light of that opinion, that the question we face in Ms. Hansen’s case arguably remained open. We begin by noting that the emphasized language in the passage from Yeutter that we last quoted, above, could be interpreted as suggesting that there may be some situations where reasonable suspicion of drug use can by itself justify direct observation of urination. Perhaps more significantly, the direct observation policy that was challenged in Yeutter'was applicable to all FNS employees, regardless of what position they held. In another part of the opinion, the court ruled that reasonable suspicion testing based on suspicion of off-duty drug use could not be permitted with regard to all FNS employees, but was permissible with regard to workers who held “safety- or security-sensitive jobs,” such as FNS motor vehicle operators. Id. at 974. This portion of the Yeutter decision demonstrates that the balancing analysis used to • measure the validity of drug testing programs under the Fourth Amendment tolerates greater intrusions on privacy for employees in “sensitive” occupations. See also Von Raab, 489 U.S. at 677-78, 109 S.Ct. at 1397 (upholding challenged drug testing program with regard to some occupations, but remanding for further factual development in order to determine whether employees in other occupations had sufficient access to sensitive information to justify application of the drug testing program to them). It is not clear that Yeutter or the balancing analysis used to measure the validity of drug testing programs would necessarily prohibit a direct observation policy for reasonable suspicion testing if that policy was applicable only to “sensitive” occupations. The Yeutter court also noted that “the Supreme Court ‘has quite clearly eschewed an approach to drug testing based on bright lines.’ ” 918 F.2d at 972 (citing Harmon v. Thornburgh, 878 F.2d 484, 490 n. 9 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990)). This statement may militate against a conclusion that Yeutter clearly established a bright-line rule prohibiting in all contexts direct observation of urination without individualized reasonable suspicion of an intent to tamper with the sample. In addition, the Yeutter court acknowledged that there appeared to be tensions between the Supreme Court’s opinions in Skinner, 489 U.S. 602, 109 S.Ct. 1402, and Von Raab, 489 U.S. 656, 109 S.Ct. 1384, with regard to the legality of direct observation of urination. See Yeutter, 918 F.2d at 976. These tensions will be discussed in detail below. Hansen’s argument that the direct observation of her urination was contrary to the Fourth Amendment is aided by a D.C. Circuit case which followed Yeutter, Piroglu v. Coleman, 25 F.3d 1098 (D.C.Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1093, 130 L.Ed.2d 1062 (1995). But like Yeutter, Piroglu does not necessarily compel the result that the direct observation of Hansen’s urination violated the Fourth Amendment. In Piroglu, a paramedic trainee alleged that a random urine drug test administered to her violated the Fourth Amendment because her urination was directly observed. Id. at 1100. The court restated Yeutter’s holding as follows: “In Yeutter, we held that in the absence of a particularized reasonable suspicion of tampering, an employer’s visual observation of its employee’s act of urination may render the employer’s drug testing unreasonable under the fourth amendment.” Piroglu, 25 F.3d at 1100 (emphasis added). The Piroglu court’s use of the word “may” can be read as suggesting that direct observation of urination without particularized reasonable suspicion of tampering does not necessarily violate the Fourth Amendment in all drug testing contexts. The court in Piroglu ruled that if the district court were to determine on remand that the observation of the paramedic trainee’s urine test “was unobstructed and complete and was without reasonable suspicion that she would tamper with her sample, the collection of [that] sample was unreasonable under the fourth amendment.” Id. at 1101. Thus Piroglu prohibited direct observation of urine testing without articulable reasonable suspicion of tampering in the context of random drug testing (not testing based on reasonable suspicion of drug use) of a person in a “sensitive” occupation, a paramedic trainee. And Yeutter prohibited direct observation without individualized suspicion of tampering in the context of drug testing based on reasonable suspicion of drug use applied to a wide range of occupations, i.e., drug testing not limited to “sensitive” occupations. However, neither of those two cases, nor any other published decision of which we are aware, explicitly prohibits direct observation of urination without individualized reasonable suspicion of tampering in the context of “sensitive” occupations when the testing is triggered by reasonable suspicion of drug use. The lack of such directly on-point authority is important to determining whether the defendants violated clearly established Fourth Amendment law. This is because the validity of drug testing under the Fourth Amendment is measured by a balancing test which weighs the specific government interest that is promoted by the drug testing, in a particularized setting, against the intrusion on the tested person’s privacy. See Von Raab, 489 U.S. at 665-66, 109 S.Ct. at 1390-91. The government interest in drug testing is certainly stronger when the tested employee works in a “sensitive” occupation. Similarly, the likelihood that direct observation of urination would be deemed to create an unjustified intrusion on privacy interests decreases when the testing is not random, but is based on reasonable suspicion of drug use. Direct observation of urination can only be justified by the possibility that the employee being tested will tamper with his or her sample. It seems reasonable to assume that only someone who actually uses drugs would have any reason to tamper with the test results. It also seems logical to assume that persons who are reasonably suspected of using drugs are more likely to actually use drugs than persons randomly tested. Since the likelihood of someone attempting to tamper with their sample would appear to increase when the testing is not random but is based on reasonable suspicion, the justifications for direct observation would also appear to be greater under reasonable suspicion testing. Because the presence of “sensitive” occupations and the presence of reasonable suspicion of drug use both weigh in the government’s favor in the balancing analysis, it is possible that a reasonable person could conclude, despite Yeutter, 918 F.2d at 976-77, and Piroglu, 25 F.3d at 1100-01, that direct observation of urination without individualized suspicion of tampering is permissible when based on reasonable suspicion and limited to employees in sensitive positions. The testing in this case is at least arguably appreciably more akin to reasonable suspicion testing than random testing, even though the agreement signed by Hansen provides for testing at random intervals, since the testing was part of a disciplinary action which followed an admission of prior drug use. Moreover, a number of cases support the proposition that prison guards who have regular contact with inmates, such as Hansen, are “sensitive” employees with legally diminished expectations of privacy. In McDonell v. Hunter, 809 F.2d 1302, 1306 (8th Cir.1987), the court approved uniform testing, random testing, and reasonable suspicion testing of correctional officers, stating that prison guards have diminished expectations of privacy. In Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir.1989), the court held that a county was permitted to annually test for drugs all correctional employees who have regular contacts with inmates, but was not permitted to annually test all correctional employees in general. In Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 204-05 (2d Cir.1984), and in McDonell, 809 F.2d at 1306-07, the courts approved strip searches of correctional officers on reasonable suspicion of smuggling contraband into prison, relying on the diminished expectations of privacy of prison guards. Finally, in Profitt v. District of Columbia, 790 F.Supp. 304, 307 (D.D.C.1991), the court upheld a body cavity search of a prison guard based on reasonable suspicion that she was smuggling drugs into the prison, stating that “diminished reasonable expectation[s] of privacy [are] accorded government employees whose duties involve public safety.” Courts have found that two general interests support increased governmental intrusions into the privacy of correctional officers who have regular contact with inmates. First, the government has an interest in maintaining prison security. Since prison inmates may be violent, drug impairment of a prison guard can lead to a breach in security and/or injury, especially since many prison guards are armed. See Taylor, 888 F.2d at 1196-97, 1199; see also McDonell, 809 F.2d at 1308. Second, prison guards who use drugs may be more likely to smuggle drugs to prisoners, as they may need money to support their habit, as they may be subject to blackmail if prisoners know of their drug use, and as their drug use may mean that they are less reluctant to violate the law by providing others with drugs. Drug use by prisoners can increase the likelihood of a lapse in prison security or injury in the prison. See Taylor, 888 F.2d at 1197; McDonell, 809 F.2d at 1308; Carey, 737 F.2d at 204. Given all of these considerations, since Hansen’s case can plausibly be viewed as involving a “sensitive” employee and testing based on reasonable suspicion, a court would not necessarily be compelled by Yeutter, 918 F.2d at 976-77, and Piroglu, 25 F.3d at 1100-01, to find that the balancing used to determine the validity of drug testing programs would come out against the defendants. We remain mindful, of course, that a right can be “clearly established” even in the absence of binding precedent in this circuit, so long as an examination of all available decisional law would make it clear to a reasonable official that his intended conduct would not be approved by the courts having jurisdiction over it. See Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). And we acknowledge that there is considerable decisional law which, while less on-point than Yeutter and Piroglu, can be construed as increasing the likelihood that the Ninth Circuit would not approve of direct observation of urination in the circumstances of this case. For example, we have found three opinions from courts within our Circuit that disfavor, in varying circumstances, direct observation of urination. In American Federation of Government Employees, Local 2891 v. Martin, 969 F.2d 788, 790 (9th Cir.1992), the appeals court reported (without obvious editorial comment) that the district court had prohibited the defendants from directly observing urination during reasonable suspicion testing of “sensitive” Department of Labor employees unless the defendants also had a reasonably-based suspicion that the persons tested might tamper with their samples. However, this particular portion of the district court’s opinion was not appealed, and the district court’s opinion was not published. In American Federation of Government Employees, Council 38 v. Thornburgh, 720 F.Supp. 154 (N.D.Cal.1989), the court reaffirmed, after examining Skinner, 489 U.S. 602, 109 S.Ct. 1402, and Von Raab, 489 U.S. 656, 109 S.Ct. 1384, an order which had struck down directly observed random drug testing of all Federal Bureau of Prisons employees. The court stated that the direct observation was a factor which made the program more intrusive than the drug testing programs approved by the Supreme Court. Id. at 155 n. 1. The third of these three cases is Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 342, 126 L.Ed.2d 307 (1993), where the court held that a male officer who directly observed the urination of & female parolee during a drug test violated the parolee’s right to bodily privacy. The court also held that the officer was not immune from liability because he had violated clearly established privacy rights. Id. We discuss the Sepulveda opinion in greater detail below, in the section that addresses plaintiffs contention that the testing to which she was subjected also violated a right to bodily privacy that receives separate protection from the Due Process Clause. Numerous cases outside the Ninth Circuit, in addition to Yeutter, 918 F.2d at 976-77, and Piroglu, 25 F.3d at 1100-01, reflect considerable judicial misgivings about the justifiability of direct observation of urination. For example, in Von Raab, 489 U.S. at 672-73 n. 2, 109 S.Ct. at 1394 n. 2, the companion case to Skinner, 489 U.S. 602, 109 S.Ct. 1402, the Supreme Court pointed out that the procedures used in the drug testing program upheld there significantly minimized the intrusion on privacy by, among other measures, not using direct observation. In a case with some factual similarity to Yeutter, American Federation of Government Employees v. Sullivan, 744 F.Supp. 294, 305 (D.D.C.1990), a district court issued a preliminary injunction against a part of a drug testing program that required direct visual observation during reasonable suspicion urine testing of all Department of Health and Human Services employees. The court in Ensor v. Rust Engineering Co., 704 F.Supp. 808, 815 (E.D.Tenn.1989), aff'd, 935 F.2d 269 (6th Cir.1991), upheld random drug testing of contract employees working at a nuclear research and nuclear weapons manufacturing facility, but stated that it would reconsider its ruling if the testing policy, which was silent on direct observation, was not amended to prohibit direct observation. In two decisions dealing with the same case, Anable v. Ford, 653 F.Supp. 22, 41 (W.D.Ark.1985), and Anable v. Ford, 663 F.Supp. 149, 155 (W.D.Ark.1985), the court held that a reasonable-suspicion-based drug test of a secondary school student which involved direct observation of urination was unconstitutional, granting an injunction and damages, and denying the defendant’s qualified immunity defense. The opinion in Storms v. Coughlin, 600 F.Supp. 1214, 1220 (S.D.N.Y.1984), a ease involving direct observation of urination, stated that urine drug testing is “entitled to the same level of scrutiny accorded to body cavity searches.” This statement in Storms was quoted by Tucker v. Dickey, 613 F.Supp. 1124, 1130 (W.D.Wis.1985). Somewhat similarly, the court in Capua v. City of Plainfield, 643 F.Supp. 1507, 1514 (D.N.J.1986), made the following statement about testing involving direct observation of urination: [Wjhile urine is routinely discharged from the body, it is generally discharged and disposed of under circumstances that warrant a legitimate expectation of privacy. The act itself, totally apart from what it may reveal, is traditionally private. Facilities both at home and in places of public accommodation recognize this privacy tradition. In addition, society has generally condemned and prohibited the act in public____ The requirement of surveillance during mine collection forces those tested to expose parts of their anatomy to the testing official in a manner akin to strip search exposure____ A urine test done under close surveillance of a government representative, regardless of how professionally or courteously conducted, is likely to be a very embarrassing and humiliating experience. The Capua court struck down a program which subjected fire-fighters to random, directly observed urine testing. Id. at 1520. Note, however, that the Capua court apparently believed that random drug testing of fire-fighters was flatly unconstitutional, irrespective of the direct observation issue. See id. at 1517. More recent cases have upheld random testing of “sensitive” employees. See, e.g., Ensor, 704 F.Supp. at 814. As is the case with Yeutter, 918 F.2d at 976-77, and Piroglu, 25 F.3d at 1100-01, none of the other numerous cases disfavoring direct observation of urination explicitly prohibit direct observation where “sensitive” employees are tested upon reasonable suspicion of drug use. However, the considerable volume of case law disapproving direct observation testing might be enough to lead us to conclude, even in the absence of binding on-point precedent, that defendants violated clearly established law, if there was no authority that appeared to point to the opposite conclusion. But there is such authority. And while it is not as voluminous as the authority that generally disfavors direct observation, it is sufficiently significant to prevent us from ruling that defendants violated clearly established law. 3. Case Law Favoring the Defendants’ Position. Our analysis of the cases that appear to favor the defendants’ contention that their conduct did not violate clearly established law begins with Skinner, 489 U.S. 602, 109 S.Ct. 1402. The drug testing regulations at issue in that case, as stated earlier, provided for testing of federal railroad employees upon reasonable suspicion of drug use or after certain triggering events. Id. at 609-11, 109 S.Ct. at 1408-10. In upholding those regulations, the Supreme Court noted that “the regulations endeavor to reduce the intrusiveness . of the collection process,” as “[t]he regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample.” Id. at 626, 109 S.Ct. at 1418 (emphasis added). However, the dissent in Skinner pointed out that the field manual that governed the testing at issue in fact required direct observation, and that the regulations themselves stated that direct observation, while not necessary, was the most effective means of ensuring the reliability of the sample. Id. at 646 & n. 8, 109 S.Ct. at 1428 & n. 8 (Marshall, J., dissenting). Thus, it is at least arguable that the majority opinion in Skinner, without squarely acknowledging what it was doing, approved a drug testing program where direct observation was in fact generally practiced when the employees being tested were in “sensitive” positions and the tests were based on reasonable suspicion of drug use (as opposed to tampering). A case that more obviously weighs against a determination that the defendants violated clearly established law is American Federation of Government Employees, Local 1533 v. Cheney, 754 F.Supp. 1409 (N.D.Cal.1990), aff'd, 944 F.2d 503 (9th Cir.1991). The components of the program that were challenged in Cheney provided for random and post-accident testing of some Navy employees, and for reasonable suspicion testing of all civilian Navy employees. Id. at 1413-14. Under the testing program, direct observation was allowed if there was reason to believe that the employee might tamper with the specimen. Id. at 1415. Significantly, the testing protocol provided that reasonable suspicion of drug use was “one circumstance which may provide such reason to believe that tampering is possible.” Id. The plan did not require direct observation of all reasonable suspicion testing. Id. The court explained that “[ujnder the Plan, reasonable suspicion of drug use may form a basis for direct observation, but direct observation is optional, not required, based on the site coordinator’s judgment, which must be documented.” Id. at 1427. The court upheld the part of the testing program that allowed direct observation. Id. Thus, Cheney can be interpreted as approving a drug testing program that gave the people administering the tests the discretion to order direct observation of urination solely on the grounds that there was reasonable suspicion of drug use (rather than reasonable suspicion of tampering). The force of Cheney is diminished somewhat by the fact that it was decided before Yeutter, 918 F.2d 968. In addition, while the Ninth Circuit affirmed the district court’s decision, the direct observation component of the program was not considered by the Ninth Circuit, because the part of the district court’s decision dealing with the direct observation issue was not appealed. See AFGE Local 1533 v. Cheney, 944 F.2d 503 (9th Cir.1991). An opinion from the Court of Appeals for the Ninth Circuit that can be read as lending some support to the contention that the Fourth Amendment does not prohibit direct observation in circumstances similar to those of the instant case is International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292 (9th Cir.1991). The challenge in Teamsters did not focus specifically on the direct observation, so any sanction of that practice from the opinion is oblique, at best. Nonetheless, the regulations at issue in that case, which the court, at least generally, approved, included a provision for direct observation. In upholding federal regulations that required random, periodic, pre-employment, and post-accident drug testing of commercial motor vehicle operators, the Teamsters court noted that the regulations limited intrusion on privacy, id. at 1302, as “[djirect observation of urination [was] allowed only in narrowly defined circumstances where the monitor may reasonably suspect the integrity of the specimen.” Id. at 1296. The import of this statement, however, is undercut by the fact that one of four “indicia warranting monitored urination” that was listed in the regulation governing direct observation was “rehabilitation or follow-up testing of an employee previously identified as using a controlled substance.” Id. at 1296 n. 1. The regulation approved in Teamsters, if applied in the circumstances faced by the plaintiff in our case, apparently would have allowed direct observation of her urination to be justified solely by the fact that she was being tested because she had admitted that she had earlier used controlled substances. The regulation approved in Teamsters probably would not have required direct observation of Hansen’s urination, however, because that regulation provided that “the concurrence of either a supervisor of the collection site monitor or an employer representative must be obtained prior to any direct observation of urination.” Id. Wilcher v. City of Wilmington, 891 F.Supp. 993 (D.Del.1995), though decided after the 1994 events at issue here, also sheds some light on whether clearly established law prohibited the conduct of the defendants. Wilcher demonstrates that the law had not evolved sufficiently by 1994 to prevent one court from approving a drug testing program which involved fairly intrusive supervision of urination. In that case the court ruled that a random drug testing program applied to fire-fighters did not violate the Fourth Amendment. Id. at 1002. Fire-fighters tested under the program testified that their urination was directly observed. Id. at 996-97. Apparently concluding (for reasons not clear) that this testimony was not credible, the court found that the program did not “involve direct observation of the genital area of the person providing the urine sample,” but only “a general supervision of the specimen provider during the course of collection so as to avoid the possibility of tampering.” Id. at 998. Because of the tension between the testimony of the fire-fighters and the court’s factual findings, it is unclear exactly what level of intrusiveness the court found the “general supervision” to entail. However, it appears that, under the court’s interpretation of the program, female employees had to urinate in the presence of a same-sex supervisor standing to their side, in the same room, without any type of partition. See id. at 996-98. The court applied the balancing test of Skinner, 489 U.S. at 619-33, 109 S.Ct. at 1414-21, and Von Raab, 489 U.S. at 665-66, 109 S.Ct. at 1390-91, and approved the program. See Wilcher, 891 F.Supp. at 999-1002. Several other cases favor the defendants’ position marginally. Tyler v. Barton, 901 F.2d 689, 691 (8th Cir.1990), granted qualified immunity to prison officials who directly monitored a parolee’s urine test, stating that whether the parolee actually had a right to unobserved urination only presented “a legitimate question.” In Molinelli v. Tucker, 901 F.2d 13, 16 (2d Cir.1990), the court granted qualified immunity to prison officials who required a prison guard to take a drug test during which urination was directly observed. This holding, however, was based on a finding that, at the time of the events in issue (1986), it had not been clearly established that urine drug testing constituted a “search.” Id. We note finally that in Scaife v. Wilson, 861 F.Supp. 1027, 1029 (D.Kan.1994), and Storms v. Coughlin, 600 F.Supp. 1214, 1220 (S.D.N.Y.1984), courts approved directly observed strip search urine tests of prison inmates, relying on case law holding that body cavity searches of inmates are generally permissible. 4. Plaintiff’s Right under the Fourth Amendment Was Not “Clearly Established.” If the issue before us was whether the direct observation of Hansen’s urination during her drug tests violated her rights under the Fourth Amendment, we probably would hold that it did. Given the doctrinal trends evident in cases such as Yeutter, 918 F.2d at 976-77, and Piroglu, 25 F.3d at 1100-01, it is fairly likely that most federal courts eventually will take the position that the Fourth Amendment generally prohibits direct observation of urination during drug testing without reasonable, individualized, and articulable suspicion of an intent to tamper with the sample. However, the issue before us is not what the law is or where it is likely to go, but whether the law was clearly established at the time of the conduct giving rise to this action. As we indicated at the beginning of our review of the pertinent authorities, at the time the defendants engaged in the conduct that plaintiff challenges here, there was no reported opinion that squarely addressed the instant issue. There was no clearly controlling authority — and the cases that favor plaintiffs position, while strong in tone, left open the possibility of different outcomes in settings where different interests were at stake. Yeutter, 918 F.2d at 976-77, and Piroglu, 25 F.3d at 1100-01, the opinions most favorable on these issues to plaintiff, are distinguishable because neither prohibited direct observation of urination when both reasonable suspicion of drug use and “sensitive” employees were involved. Moreover, there were other cases in which defendants could find some support for the view that, in the specific circumstances presented by Hansen’s situation, the direct observation did not offend Fourth Amendment norms. In Skinner, 489 U.S. 602, 109 S.Ct. 1402, for example, a majority of the justices on the Supreme Court (over a vigorous dissent) appeared to approve, sub silentio, a drug testing program where direct observation was the actual practice, at least in most circumstances. And in Cheney, 754 F.Supp. 1409, a court in this district appeared to approve a testing regimen in which direct observation of urination could be justified solely on the ground that there was reasonable suspicion that the person being tested had used drugs. Given all the considerations described above, and the difficulty, generally, of predicting outcomes of specific balancing analyses that have not yet been undertaken by any court, we cannot conclude that the Fourth Amendment right plaintiff invokes here was “clearly established” during 1994. That conclusion compels us to hold that the individual defendants are entitled to qualified immunity from Hansen’s Fourth Amendment damages claim — and thus to direct entry of summary judgment in their favor on that claim. C. Plaintiff’s Contention that Defendants’ Conduct Violated a “Clearly Established” Separate Right of Bodily Privacy, Protected Independently by the Due Process Clause. Aided by three opinions issued by the Court of Appeals for the Ninth Circuit, plaintiff appears to contend that defendants’ conduct (ordering the direct observation of her urinating) violated a separate right of bodily privacy that is not dependent on or rooted solely in the Fourth Amendment’s prohibition against unreasonable searches and seizures, but that has independent sources in the Due Process Clause (here of the Fourteenth Amendment) and, perhaps, in the penumbras of other amendments. Plaintiff further contends that it was clearly establishe