Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Police supervisor denied qualified immunity in Fourth Amendment employee drug testing case, (Jun 3, 2026)

By Nicholas Kaster, J.D.

The supervisor commanded officers present at the employee’s home to tell the employee he was being ordered to come into work to take a drug test.

The U.S. Court of Appeals for the Fifth Circuit has upheld a federal district court’s denial of qualified immunity to a police supervisor who ordered a civilian employee to take a drug test. The employee sued the supervisor, alleging that he was subjected to unlawful seizure in violation of the Fourth Amendment. The supervisor moved for summary judgment, invoking qualified immunity. The supervisor was aware that the employee wished to remain in his house, yet he ordered police officers, without a warrant or exigent circumstances, to order the employee to submit to the drug test. Viewing the facts in the light most favorable to the employee, the Fifth Circuit found that the supervisor’s statements were objectively unreasonable in light of clearly established Fourth Amendment law and accordingly, denied his motion for summary judgment (Von Derhaar v. Watson, No. 25-30399 (5th Cir. June 2, 2026)).

Wellness check and resignation. A civilian employee of the New Orleans Police Department (NOPD) requested leave without pay when his concerns over certain NOPD practices went unanswered. Officers subsequently went to his home to conduct a wellness check. The officers informed the employee that they were concerned about his wellbeing and asked him to accompany them to the Public Integrity Bureau (PIB) to take a drug test. When the employee asked to go back into his home, officers called a supervisor in the PIB, who commanded the officers to tell the employee he was being ordered to come into work to take the test. The employee ultimately resigned instead of submitting to the drug test.

Lawsuit. The employee sued the supervisor, among others, under 42 U.S.C. § 1983, alleging that he was subjected to unlawful arrest, search, and seizure in violation of the Fourth Amendment. The supervisor filed a motion for judgment on the pleadings and, in the alternative, a motion summary judgment, in which he invoked qualified immunity.

Decision below and appeal. A federal district court in Louisiana granted the motion in part and denied it in part. The district court dismissed the employee’s claims against the supervisor relating to the alleged unlawful entry into his home. However, the court denied qualified immunity as to the unlawful seizure claim, holding that any reasonable official under the totality of circumstances here or in the supervisor’s position “should have known that ordering the seizure of a private citizen from their home for the purpose of completing a drug test, without a warrant, probable cause, or exigent circumstances is objectively unreasonable.” The current appeal ensued.

Qualified immunity. The doctrine of qualified immunity protects public officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” A plaintiff seeking to overcome qualified must show: (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. A government official violates clearly established law when, at the time of the challenged conduct, “the contours of the right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Although a case does not have to be directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.

Liability of supervisor. To be liable under Section 1983, a supervisor must have been personally involved in the alleged constitutional deprivation or have engaged in wrongful conduct that is causally connected to the constitutional violation. Personal involvement of supervising personnel generally includes giving a command, signal, or any other form of direction to the officers that prompted the detention or arrest.

Here, the supervisor directed officers to tell the employee that “he’s being put back on the clock, he’s being ordered to come into work to take this test.” The supervisor made that statement immediately after officers informed him that the employee wished to remain at his home. Acting on the supervisor’s order, officers compelled the employee to leave his home and transported him to the PIB. The Fifth Circuit had already held that the actions ordered by the supervisor, when viewed in the light most favorable to the employee, constituted an unlawful seizure in violation of the Fourth Amendment.

Objectively unreasonable. However, because the supervisor invoked qualified immunity, that was not enough. His conduct must have been objectively unreasonable in light of clearly established law. It is clearly established that a seizure occurs where, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The supervisor was aware that the employee wished to remain in his house, yet the supervisor ordered officers, without a warrant or exigent circumstances, to order the employee to go to the PIB to take a drug test. Viewing the facts in the light most favorable to the employee, the Fifth Circuit found that the supervisor’s statements were objectively unreasonable in light of clearly established Fourth Amendment law.

At this early, summary judgment stage, the Fifth Circuit held, the employee established a genuine dispute of material fact as to the unlawful seizure claim. The facts, when viewed in the light most favorable to him, constituted a clearly established Fourth Amendment violation. The Fifth Circuit expressed no view as to the ultimate merits of any claim, which will be determined beyond the summary judgment stage.

The case is No. 25-30399.

Judge: Smith, J.

Attorneys: Andrew Ash Maberry (Winston Bergeron, L.L.P.) for Karl Von Derhaar. Elizabeth Silvis Robins, City of New Orleans Law Department, for Darryl Watson.

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