February 27th, 2019

City clings to controversial hair test despite evidence of racial bias

Boston police refuse to drop test despite evidence of false positives

Trea Lavery

A group of minority police officers are suing the Boston Police Department over a drug testing program which has long been called both unreliable and discriminatory.

The Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) filed an amicus brief last week in the Massachusetts Supreme Judicial Court on behalf of a police officer who was denied a position at BPD when he tested positive for cocaine in a hair test.

A separate, federal case also filed by MAMLEO argues that the testing procedure is discriminatory, as false positives occur much more often with black police officers than those of other races.

“Hair testing is unreliable and discriminatory,” said MAMLEO President Larry Ellison in a statement. “BPD has unjustly fired many officers due to false positives on the test.”

The hair testing process was developed by Acton-based Psychemedics, which claims that the procedure can detect cocaine, marijuana, opiate, methamphetamine, MDMA, MDEA and PCP use within a several-month-long window, as opposed to the more common urinalysis process which can only detect drug use within a few days.

The procedure looks for drug molecules or “metabolites” within the hair shaft. However, multiple scientific studies have shown that the process is unreliable, and results can be easily skewed by external contamination. While Psychemedics has said that they wash hair samples before testing and uses established cut-off amounts to account for external contamination, the lawsuit explains that experts have not accepted these workarounds.

Cocaine contamination is surprisingly widespread (testimony in the lawsuit notes that much of the paper currency in the United States is contaminated with trace amounts of the drug, and it has been found in urban and suburban elementary school desks in the Washington, D.C. area), and is especially easy for police officers to pick up due to their working environment.

Due to these issues, the federal Substance Abuse and Mental Health Services Administration said in 2008 that it would use only urinalysis going forward for federal employees, and the FBI stopped hair testing in almost all criminal cases the next year. The Massachusetts Civil Service Commission ruled in 2013 that BPD could not discharge an officer based on a positive hair drug test, a ruling the department appealed. The decision was upheld by the state Superior Court the next year, and BPD appealed again.

A spokesman for BPD declined to comment for this story as BPD does not speak on pending litigation. The Mayor’s Office also declined to comment, directing questions to BPD.

The lawsuit

The amicus brief, filed on behalf of BPD applicant Michael Gannon, is the latest legal challenge to BPD’s drug testing procedures, and appeals a decision by the Civil Service Commission that sided with BPD on Gannon’s case.

“The City claims to value diversity in its public safety agencies, yet it clings to a discredited drug testing program that falsely brands many Black officers as drug users and results in their termination,” said Oren Sellstrom, litigation director at Lawyers for Civil Rights, which is representing MAMLEO alongside law firm WilmerHale, in a statement.

Gannon was denied a position at the department after a hair test came back positive, despite consistently testing negative as a police cadet. He immediately sought a confirmation test, which came back negative, but he was still not hired.

The lawsuit states that “although the Department takes multiple hair samples from tenured employees, and requires that two samples test above a specified cut-off level and within 30 percent of each other, the Department analyzes only one sample of an applicant’s hair.”

The federal lawsuit, on the other hand, has been going on since 2005, and asserts that the hair testing process is not just unreliable but discriminatory, as it results in a far higher number of positives for black officers, allegedly due to their unique hair texture.

The U.S. District Court of Massachusetts ruled in favor of the city in that case in 2012, but the ruling was subsequently overturned.

Sellstrom told the Banner that the city has squandered millions of tax dollars defending this case, instead of, as he would like to see, promoting diversity in the police department.

Oral arguments in the new case are scheduled to be heard March 5.

“As a result of the use of this test over many years, this has significantly hampered diversity efforts in the Boston Police Department,” Sellstrom said. “It is keeping qualified officers, in particular officers of color, off the force.”