                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-2963
                                    _____________

    NICHOLAS KRAMER; BRIAN MCGOVERN; PATRICK FAY; JOHN BADO;
         STEFANO PETRILLO; MICHAEL STISE; VICTOR VARGAS

                                            v.

 CITY OF JERSEY CITY; JERSEY CITY POLICE DEPARTMENT; POLICE CHIEF
    THOMAS J. COMEY, in both his official and individual capacity; MIDTOWN
  OCCUPATIONAL MEDICINE; EDWARD F. BOYLAN, MD, or alternatively as an
employee of Midtown Occupational Medicine, LLC; DANIEL A. CARIONE; NY JOHN
 DOES 1-13, fictitious names not yet known; CITY OF NEW YORK, for the New York
                               City Police Department

                    Nicholas Kramer; Brian McGovern; Patrick Fay,
                                                             Appellants
                                  _____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. No. 09-cv-03767 & 10-cv-00729)
                     District Judge: Honorable Peter G. Sheridan
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 15, 2011

      Before: FUENTES and CHAGARES, Circuit Judges, and RESTANI, Judge*

                          (Opinion Filed: December 20, 2011)




*
 Honorable Jane A. Restani, United States Court of International Trade, sitting by
designation.
                                      _____________

                               OPINION OF THE COURT
                                   _____________

FUENTES, Circuit Judge.

       Jersey City police officers Nicholas Kramer, Brian McGovern, and Patrick Fay

brought this action pursuant to 42 U.S.C. § 1983, alleging that their rights were violated

when they were suspended from active duty for their use of legally prescribed steroids.

They now appeal from the District Court’s dismissal of their complaint insofar as it found

that their § 1983 claims were barred by qualified immunity. We will affirm.

                                             I.

       We write primarily for the parties and recite only the facts essential to our

disposition. On February 12, 2008, Captain Daniel Carione of the New York City Police

Department (“NYPD”) informed Jersey City Police Chief Thomas Comey that he was

conducting an investigation into illegal anabolic steroid use among members of the

NYPD and that subpoenaed records showed that numerous NYPD officers were

purchasing steroids from a pharmacy in New York City. It had come to his attention, he

wrote, “that members of law enforcement from New Jersey may have utilized [d]octors

affiliated with the targeted pharmacy, purchasing illegal anabolic steroids and human

growth hormone.” (App. 89). He asked Chief Comey for a list of all Jersey City police

officers so that it could be compared against the pharmacy records.

       On February 20, 2008, officers Kramer, McGovern, and Fay (the “Officers”),

among many others, were taken into custody by the Jersey City Police Department



                                              2
Internal Affairs Unit. They were required to disclose the medications they were taking

and to provide urine samples to test for their use of steroids. Each of the Officers was

taking hormone replacement drugs prescribed by a licensed medical doctor to treat him

for hypogonadism and erectile dysfunction. They had filled these prescriptions at various

pharmacies, including the New York City pharmacy that was the subject of Captain

Carione’s letter. Dr. Edward Boylan evaluated the urinalysis results and recommended

whether each officer was fit for duty. While the test results were pending, the Officers

were placed on modified duty without their weapons. As a consequence of the tests and

recommendations, McGovern and Fay stopped their medical treatment. Kramer

unsuccessfully attempted to continue treatment at lower doses and was ultimately

suspended without pay for 159 days on the basis of his unacceptably elevated levels of

Testosterone/Epitestosterone.

       The Officers brought this § 1983 action against the City of Jersey City, the Jersey

City Police Department, Chief Comey, Dr. Boylan, and Captain Carione. Upon these

defendants’ Rule 12 motions to dismiss and for judgment on the pleadings, the District

Court dismissed the § 1983 claims on the basis of qualified immunity, determining that

the drug testing and placement on modified duty was reasonable in light of the

information received, the government interest in regulating the police, and police

officers’ diminished expectations of privacy.1


1
  The Officers also asserted claims under the Americans with Disabilities Act (“ADA”)
and New Jersey law. The District Court dismissed the ADA claims for failure to state a
claim under the statute and declined to exercise supplemental jurisdiction over the state
law claims. The Officers do not challenge these determinations on appeal.

                                             3
                                              II.

       On appeal, the Officers argue that the District Court’s grant of qualified immunity

was premature. Although “the Supreme Court has repeatedly stressed the importance of

resolving immunity questions at the earliest possible stages of litigation,” Curley v.

Klem, 298 F.3d 271, 277 (3d Cir. 2002) (noting that qualified immunity is an entitlement

not to stand trial rather than a mere defense to liability), the Officers contend that the

District Court resolved the question of qualified immunity too early in their case. They

argue that the District Court improperly considered facts outside the pleadings, in essence

converting the Rule 12 motions into motions for summary judgment without notice, and

determined the reasonableness of the defendants’ actions without adequate factual

development.2

                                              A.

       In particular, the Officers object to the District Court’s observation that

“[g]enerally, high steroid levels [are] linked to aggressive behavior,” (App. 6), from

which it inferred that drug testing, modified duty, and suspensions were reasonable

measures taken to ensure that Jersey City police officers using steroids were neither

dangerous nor unfit for duty. However, the Officers do not deny the uncontroversial

proposition that high steroid levels have been linked to aggressive behavior. See

generally Nat’l Inst. on Drug Abuse, Nat’l Insts. of Health, Pub. No. 06-3721, Research


2
 The District Court had jurisdiction over this matter under 28 U.S.C. §§ 1331, 1343, and
§ 1367. We have appellate jurisdiction over the District Court’s final order of dismissal
under 28 U.S.C. § 1291, and we exercise plenary review. See Yarris v. County of
Delaware, 465 F.3d 129, 134 (3d Cir. 2006).

                                               4
Report: Anabolic Steroid Abuse 5 (2006), available at

http://drugabuse.gov/PDF/RRSteroids.pdf. We hold that the District Court did not err by

taking judicial notice of this relationship.

                                                B.

          Accepting plaintiffs’ allegations as true and drawing all inferences in their favor,

see Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 2006), we agree with the District

Court that the Officers’ allegations cannot establish a violation of their constitutional

rights.

          Police officers “are members of quasi-military organizations, called upon for duty

at all times, armed at almost all times, and exercising the most awesome and dangerous

power that a democratic state possesses with respect to its residents—the power to use

lawful force to arrest and detain them.” Policemen’s Benevolent Ass’n of N.J., Local 318

v. Washington Twp. (Gloucester County), 850 F.2d 133, 141 (3d Cir. 1988). “The need

in a democratic society for public confidence, respect and approbation of the public

officials on whom the state confers that awesome power” is compelling. Id.; see Nat’l

Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989). At the same time,

police departments require “officers who are physically and mentally capable of working

in dangerous and highly stressful positions, sometimes over long periods of time.”

Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 114 (3d Cir.

1987). Thus, “police officers have little reasonable expectation that . . . medical

information will not be requested.” Id.




                                                5
       In light of the police officers’ diminished expectations of privacy in their medical

information, it is evident that Captain Carione did not violate the Officers’ constitutional

rights by informing Chief Comey that the Officers had been filling prescriptions at a

pharmacy under investigation for selling illegal anabolic steroids. This Court has held

specifically that a police department may require its officers to divulge information about

prescription drug use so long as the information is directly related to the interest of the

police department in ensuring that its officers are physically and mentally able to perform

the job. Id. It follows that the Captain Carione and the NYPD may permissibly share

such information with a sister police department.

       Similarly, Chief Comey did not violate the Officers’ constitutional rights by

mandating that the Officers submit to urinalysis and relinquish their weapons while the

results were pending. Government-imposed urinalysis is a search within the meaning of

the Fourth Amendment and must therefore be “reasonable.” Von Raab, 489 U.S. at 665.

“[W]here a Fourth Amendment intrusion serves special governmental needs, beyond the

normal need for law enforcement, it is necessary to balance the individual’s privacy

expectations against the Government's interests” to determine whether the intrusion may

be reasonable even in the absence of a warrant and probable cause. Id. Thus, random

urinalysis of police officers is reasonable because of the safety-sensitive positions they

occupy. Policemen’s Benevolent Ass’n, 850 F.2d at 141 (upholding a New Jersey

township’s random drug testing program for police officers); Von Raab, 489 U.S. 656,

677 (1989) (upholding the random drug testing of armed customs officers). Where, as

here, only specific police officers are targeted, the search must be supported by


                                              6
“reasonable suspicion.” Copeland v. Phila. Police Dep’t, 840 F.2d 1139, 1143 (3d Cir.

1988) (upholding the compulsory urinalysis of a police officer suspected of using illegal

drugs); see also Ford v. Dowd, 931 F.2d 1286, 1289-90 (8th Cir. 1991); Carroll v. City of

Westminster, 233 F.3d 208, 212 (4th Cir. 2000).

       The reasonable suspicion standard is not difficult to meet, and it was met in this

case. All that is required is objectively reasonable suspicion that the individual to be

tested was inhibited in performing his or her duties because of illicit drug or alcohol use.

See Copeland, 840 F.2d at 1144; Ford, 931 F.2d at 1292. Factors affecting the

reasonableness of the suspicion may include the nature of the information received, the

reliability of the source, and the degree of corroboration. Copeland, 840 F.2d at 1144. In

this case, Chief Comey received verifiable information from a reliable source—the

NYPD—that specific officers under his command were filling steroid prescriptions at a

pharmacy in another city which was the target of an investigation into illegal steroid

abuse. Under these circumstances, Chief Comey had a reasonable suspicion that the

Officers’ perception and judgment might be impaired by excessive steroid levels. It was

therefore reasonable for Chief Comey and Dr. Boylan to test the Officers for such

excessive levels and to relieve them of their weapons until it was confirmed that their

steroid levels were within safe limits. See Von Raab, 489 U.S. at 671 (“[T]he public

should not bear the risk that employees who may suffer from impaired perception and

judgment will be promoted to positions where they may need to employ deadly force.”).




                                              7
                                            III.

       Because the allegations in the complaint cannot establish a constitutional

violation, we will affirm the District Court’s order of dismissal.




                                              8
