                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 08a0014p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                     X
                               Plaintiff-Appellant, -
 JOE A. PENNINGTON,
                                                      -
                                                      -
                                                      -
                                                          No. 07-5180
          v.
                                                      ,
                                                       >
 METROPOLITAN GOVERNMENT OF NASHVILLE AND             -
                                                      -
                                                      -
 DAVIDSON COUNTY; JOSEPH BISHOP, individually;

                            Defendants-Appellees. -
 and MICHAEL T. HAGAR, individually,

                                                      -
                                                     N
                      Appeal from the United States District Court
                    for the Middle District of Tennessee at Nashville.
                    No. 05-01075—Robert L. Echols, District Judge.
                                   Argued: November 2, 2007
                             Decided and Filed: January 10, 2008
                    Before: SILER, MOORE, and GILMAN, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Phillip L. Davidson, Nashville, Tennessee, for Appellant. Francis H. Young,
METROPOLITAN DEPARTMENT OF LAW, Nashville, Tennessee, for Appellees. ON BRIEF:
Phillip L. Davidson, Nashville, Tennessee, for Appellant. Francis H. Young, METROPOLITAN
DEPARTMENT OF LAW, Nashville, Tennessee, for Appellees.
                                      _________________
                                          OPINION
                                      _________________
         RONALD LEE GILMAN, Circuit Judge. Joe A. Pennington, a Metropolitan police officer,
was off duty when he became involved in an altercation at a Nashville bar. Deputy Chief Joseph
Bishop and Captain Michael Hagar later requested Pennington to submit to a breathalyzer test.
Pennington agreed to take the test because he was afraid that he would be terminated or suspended
if he failed to comply. He subsequently sued Bishop, Hagar, and the Metropolitan Government of
Nashville and Davidson County on the basis that he was unlawfully required to take the breathalyzer
test in violation of his constitutional rights. The district court granted judgment in favor of the
defendants. For the reasons set forth below, we AFFIRM the judgment of the district court.




                                                1
No. 07-5180           Pennington v. Metropolitan Govt. of Nashville, et al.                    Page 2


                                        I. BACKGROUND
A.     Factual background
        On December 25, 2004, Pennington was not on active assignment. He and his date met two
of his high school friends at the Red Iguana, a bar in downtown Nashville, between 9:00 and 10:00
p.m. Pennington testified at his deposition that he had four or five Bud Lights throughout the
evening, but on the night in question he told Sergeant Johnathan Rogers that he drank seven beers
at the bar.
        Sometime after midnight, while still at the bar, Pennington’s friends became involved in an
altercation with other patrons. Security guards on the premises attempted to break up the fight.
Because Pennington thought that the guards were using excessive force on one of his friends, he
intervened to help the friend. The security guards then attempted to grab Pennington. He struggled
against the guards’ attempts to subdue him and eventually identified himself as a police officer. The
fight immediately stopped and Pennington and his friends were escorted out of the bar. Once
outside, the manager informed Pennington and his friends that one of the other individuals had
identified himself as a police officer and that no one could leave until the police arrived. Pennington
told the manager that he was a police officer and that he did not recognize any of the other
individuals as a fellow officer. When the manager asked to see Pennington’s credentials,
Pennington presented his badge and police commission card.
       Sergeant Rogers was the first police officer on the scene. Pennington knew Rogers because
the two men had previously worked together. Rogers asked Pennington what had happened, and
Pennington gave his account of the altercation. Captain Hagar arrived on the scene as Sergeant
Rogers was interviewing the other witnesses who were standing on the sidewalk.
        After gathering the basic facts of the incident, Hagar spoke with Pennington, who appeared
“red-faced.” Hagar testified at his deposition that he “attributed some of that to the drinking and
some of that to having been in an altercation.” Pennington informed Hagar that he had pushed the
security guards before identifying himself as a police officer. According to Hagar, Pennington was
generally cooperative throughout the entire incident. There were two simultaneous investigations
going on, one a criminal investigation handled by Sergeant Rogers and the other an administrative
investigation handled by Hagar.
        After determining that Pennington had been drinking, was involved in a fight, and had
identified himself as a police officer, Hagar contacted Pennington’s supervisor, Acting Captain
Shawn Parris. Parris suggested that Hagar call Assistant Chief Bishop. Hagar explained the
situation to Bishop and asked Bishop if a breathalyzer test should be administered to Pennington.
Based on Pennington’s apparent intoxication, involvement in the fight, and having identified himself
as a police officer, Bishop agreed that Pennington should take a breathalyzer test. Bishop further
stated that if Pennington did not voluntarily submit to the breathalyzer test, Hagar should “give him
an order to take the breath test as an administrative process within our policy.”
        Although there is no written policy that prohibits an intoxicated police officer from
identifying himself as such, Bishop said that there is a policy “that when . . . officers invoke their
authority, that they be subject to all of the policies and procedures of the police department, one of
which is not being intoxicated.” Hagar testified that the reason for the breathalyzer test was to
protect the department and Pennington “against allegations of misconduct, wrongdoing on the part
of an officer.”
No. 07-5180           Pennington v. Metropolitan Govt. of Nashville, et al.                   Page 3


       According to Hagar, he returned to Pennington after speaking with Bishop and said:
               Your chain of command has been notified. . . . It’s going to be
               investigated. You know the fact that you have been drinking is going
               to be an issue. . . . That should not cloud the issue of what happened
               here. You can take a breath test. We can put that all out of the way.
               There will be no doubt; nobody can ever question how much you had
               to drink, how drunk you were or anything. . . . You can volunteer to
               do this.
Hagar claims that Pennington agreed to take the test. The only time Pennington became angry,
according to Hagar, was when they discussed what to do with Pennington’s date. The matter was
resolved by Hagar’s hailing a cab for Pennington’s date and allowing Pennington to talk to her and
put her in the cab.
      Pennington disputes that he voluntarily submitted to the breathalyzer test. According to
Pennington, when Hagar brought up the breathalyzer test,
               I made the statement that I don’t agree with this, that I don’t think
               there is any legal grounds on this. I was told that I was given a direct
               order, and that I would go to Central Station per Chief Bishop and
               take a breathalyzer, and there would be no further discussion or [I
               would] face termination and discipline.
Pennington further stated that “[a]t the time of that incident, I didn’t know if I was being
investigated for criminal charges or disciplinary charges. I was told that if I [didn’t] go to Central
Station and take a breathalyzer, I would face termination or suspension.”
       Hagar decided to have the breathalyzer test administered at Central Station to avoid the
crowd that had gathered on the street in front of the bar. Sergeant Rogers offered to drive
Pennington in Rogers’s squad car. Hagar informed the officers that “[h]e’s not going to sit in the
back. He is not going to be handcuffed. He’s not under arrest. He’s cooperative.” The breathalyzer
test was administered in the back seat of a DUI police car in the parking lot of Central Station.
Pennington registered a .121 breath alcohol level.
       Following the administration of the breathalyzer test, Hagar asked Pennington to write out
a statement regarding the incident. Pennington requested permission to delay writing out the
statement because he did not want to “write out a statement that was going to be misspelled and
garbled” due to his intoxication. Hagar then asked Rogers to drive Pennington home and ordered
Pennington to submit his written report at the start of his shift the following day.
        After an internal investigation into the incident, the Metropolitan Police Department
determined that Pennington had not violated any departmental policies or regulations. Pennington
later received informal verbal counseling from his supervisor.
B.     Procedural background
        Based on the foregoing facts, Pennington sued Bishop, Hagar, and the Metropolitan
Government pursuant to 42 U.S.C. § 1983. Pennington alleged that Bishop and Hagar violated his
rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments by ordering him to take a
breathalyzer test. He also claimed that the Metropolitan Government permitted, encouraged, and
tolerated an official pattern, practice, or custom of its law enforcement officers administering the
breathalyzer test in a manner that violated his constitutional rights.
No. 07-5180           Pennington v. Metropolitan Govt. of Nashville, et al.                     Page 4


       Bishop, Hagar, and the Metropolitan Government filed a joint motion to dismiss the
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, contending that
Pennington had failed to state a claim upon which relief can be granted. The district court granted
the motion as to Pennington’s Fifth and Sixth Amendment claims and on his Fourteenth Amendment
equal-protection claim. It denied the motion regarding the remaining claims.
        The defendants subsequently filed a motion for summary judgment on Pennington’s Fourth
Amendment claim and his Fourteenth Amendment due process claim, alleging that they had not
violated Pennington’s constitutional rights and that, in the alternative, the individual defendants were
entitled to qualified immunity. The district court granted the motion for summary judgment, finding
that Pennington’s breathalyzer test did not constitute an unconstitutional seizure, that Bishop and
Hagar would be entitled to qualified immunity in any event, and that the claim against the
Metropolitan Government was without merit because the claims against the individual defendants
failed. Pennington then filed the present appeal, arguing that the district court erred in granting
summary judgment to Bishop and Hagar. He does not appeal the grant of summary judgment to the
Metropolitan Government.
                                           II. ANALYSIS
A.      Standard of review
        We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,
434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In considering a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B.      Constitutionality of the breathalyzer test as applied to Pennington
        On appeal, Pennington argues that the district court erred by granting Bishop’s and Hagar’s
motion for summary judgment. The defendants contend that the only real issue on appeal is whether
there was a violation of Pennington’s constitutional rights, because if his rights were not violated,
then he has no claim under § 1983. Section 1983 “prohibits actions ‘under color of state law’ which
deprive an individual of a right secured by the U.S. Constitution or a federal statute.” Cherrington
v. Skeeter, 344 F.3d 631, 644 (6th Cir. 2003).
        “[T]he Constitution forbids . . . not all searches and seizures, but unreasonable searches and
seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968). A person is seized when “a reasonable person
would not feel free to leave an encounter with police.” Bennett v. City of Eastpointe, 410 F.3d 810,
834 (6th Cir. 2005). In Florida v. Bostick, 501 U.S. 429, 439 (1991), the Supreme Court stated that
“a court must consider all the circumstances surrounding the encounter to determine whether the
police conduct would have communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.”
        Whether a breathalyzer test administered to an off-duty police officer amounts to an
unconstitutional seizure is an issue of first impression for this court. “[P]olicemen, like teachers and
lawyers, are not relegated to a watered-down version of constitutional rights.” Garrity v. New
Jersey, 385 U.S. 493, 500 (1967). The Fourth Amendment’s prohibition against “unreasonable
searches and seizures” therefore applies to police officers. Moreover, drug or alcohol testing of a
governmental employee implicates the Fourth Amendment even though the testing may not be
No. 07-5180           Pennington v. Metropolitan Govt. of Nashville, et al.                    Page 5


related to enforcement of the criminal law. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S.
602, 616 (1989) (applying drug and alcohol testing to railroad employees for safety reasons).
        The defendants cited, and the district court relied on, the cases of Grow v. City of Milwaukee,
84 F. Supp. 2d 990 (E.D. Wis. 2000), and Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.
2002). Pennington has not addressed either of these two cases. Grow involved a number of
Milwaukee police officers who were required to submit to breathalyzer tests while off duty. The
facts surrounding one of the officers, Jean Docter, are strikingly similar to the instant action.
        Docter was attending a Serbian Day Festival in Milwaukee when a fight broke out. She
attempted to intervene in the fight and was injured. Several on-duty officers responded to her 911
call, and Docter approached one of the officers to lodge a battery complaint against the individual
who had struck her. The on-duty officers on the scene suspected that Docter was intoxicated. Her
supervisors ordered Docter to return to the police station and take a breathalyzer test. When the test
determined that Docter’s breath alcohol level was 0.17, she was suspended for five days without
pay.
       The district court held that Docter was seized when she was ordered to submit to the
breathalyzer test. Grow, 84 F. Supp. 2d at 1004. But the seizure was held to be reasonable because
Docter was in a “public place[] and might have had to perform police duties.” Id. The district court
determined that Docter was “seized under circumstances where, if intoxicated, [she] would have
presented a danger to the public.” Id.
        Two years later, the Seventh Circuit in Driebel called into question the “seizure” conclusion
of Grow. 298 F.3d at 641. Driebel involved claims brought by Milwaukee police officers that they
had been unconstitutionally ordered to remain on duty and return to headquarters for questioning
related to a criminal investigation into their activities. Id. The Seventh Circuit reasoned as follows:
               Grow fails to acknowledge that police officers: (1) may reasonably
               believe, based upon their workplace obligations to comply with
               department’s guidelines and regulations, that their employment
               relationship will be severed if they refuse or disobey an order,
               direction, or request to accompany detectives to the department’s
               headquarters; but (2) lack any reasonable basis to feel that they will
               be restricted by force or a show of lawful authority in their freedom
               of movement or their ability to terminate the encounter.
Id. at 642 (emphasis in original).
        According to the Seventh Circuit, “the possibility or even probability of a future adverse
employment action—as opposed to physical detention—cannot enter our analysis of whether the
officers in this case were seized.” Id. (emphasis omitted). This conclusion is based on the need to
“distinguish between a police department’s actions in its capacity as an employer and its actions as
the law enforcement arm of the state.” Id. at 637. The court concluded that because
               the Fourth Amendment does not protect against the threat of job loss,
               the relevant constitutional inquiry must focus on whether reasonable
               people in the position of the subordinate officers would have feared
               seizure or detention if they had refused to obey the commands given
               by their superior officers.
Id. at 642 (emphasis in original).
No. 07-5180           Pennington v. Metropolitan Govt. of Nashville, et al.                      Page 6


        Pennington acknowledges in his brief that he “was compelled by the threat of job loss to
submit to being taken to Central Station, and given a breathalyzer test.” The Supreme Court,
however, has held that a “person is ‘seized’ only when, by means of physical force or a show of
authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553
(1980). A person is not seized simply because he believes that he will lose his job. Dreibel, 298
F.3d at 642.
         Hagar disputes Pennington’s assertion that he was not free to leave. Specifically, Hagar
testified that “if [Pennington] hadn’t agreed to take the test, he would have gone home,” subject to
departmental disciplinary action. During his deposition, Pennington essentially agreed with Hagar’s
characterization when he testified that “if they would have let me leave willingly, I probably would
have gotten fired. If they would have exerted authority, I would have probably been put in
handcuffs and placed in the back seat of a car.” In other words, Pennington was afraid that he would
lose his job or suffer disciplinary action if he failed to submit to the breathalyzer test, and he agreed
to the test for that reason. Pennington was not handcuffed, he was not placed in the back seat of the
police car, he was not read his Miranda rights, and he was allowed to return home without filing his
report of the incident.
        We find the reasoning of the Seventh Circuit in Driebel to be both persuasive and applicable
to Pennington’s claim. A reasonable off-duty officer in Pennington’s position would not have feared
seizure or detention if he had refused to take the breathalyzer test. See Driebel, 298 F.3d at 642.
Pennington himself did not appear to fear seizure or detention; instead, he was afraid that he would
be terminated or suspended. Under the totality-of-the-circumstances analysis, we conclude that
Pennington was not seized when he submitted to the breathalyzer test. Moreover, because
Pennington submitted to the breathalyzer test, we have no need to decide whether he could have
been permissibly discharged if he had failed to comply. We also have no need to determine whether
Bishop and Hagar are entitled to qualified immunity. See McKinley v. City of Mansfield, 404 F.3d
418, 429 (6th Cir. 2005) (stating that “as a precursor to the Harlow qualified immunity analysis, a
court must first determine whether any constitutional violation occurred, let alone the violation of
a clearly established right”) (emphasis in original).
                                        III. CONCLUSION
        For all of the reasons stated above, we AFFIRM the judgment of the district court.
