Lawyers call on city to settle hair test suits

More than $2 million in legal fees as city fights judgements

Yawu Miller

Yawu Miller is the former senior editor of the Bay State Banner. He has written for the Banner since 1988.... VIEW BIO

A coalition of civil rights groups sent an open letter to the City of Boston last week demanding that the Boston Police Department end its use of the controversial hair test to determine whether officers have used drugs.

The letter is signed by Lawyers for Civil Rights, the Boston Society of Vulcans, the ACLU of Massachusetts, the Massachusetts Association of Minority Law Enforcement Officers, the Massachusetts Employment Lawyers Association and the Massachusetts Law Reform Institute.

City officials have spent $2.1 million defending against claims from officers who were fired following drug tests by the firm Psychemedics that the officers said produced false positives. Judgments against the city could far exceed that figure, the letter states, adding that partial payments for back pay and benefits that the city has already made exceeded $1.7 million by February of 2018.

“At a time when the community is calling on the city to recommit to improving diversity, expending millions of scarce taxpayer dollars to continue defending this discriminatory test is unconscionable,” the letter reads.

At issue is Psychemedics’ claim that their hair test, which the firm says can detect evidence of drug use through hair samples, can distinguish between drugs that are ingested and drugs that entered subject’s hair through environmental contamination. All officers who have sued the city tested positive for cocaine, although BPD tests officers for a wide range of drugs. Studies have found that traces of cocaine are common on public surfaces including office building door knobs, service station fuel pumps, ATM machine key pads and shopping cart handles, in addition to on U.S. paper currency.

People of African descent are more likely to receive false positive results than whites, researchers say, owing to the texture of African hair and to the use of moisturizers to condition such hair.

In the first seven years after BPD implemented hair testing in 1999, black officers tested positive for cocaine at a rate of 1.3 percent, while white officers tested positive at just 0.3 percent. Ten officers have sued BPD for what they say are false positives. While many have received judgements against the city for its use of the controversial test as a determining factor in firing or disciplining officers, city officials have repeatedly appealed those judgements.

The letter opens with the sentence, “It’s time for the City of Boston to take a stand against Psychemedics’ hair drug test.” In a very real sense, the city already has. In 2017, the city sought to recoup damages from Psychemedics in the event a judge rules against its use of the test. Psychemedics filed a lawsuit seeking to block the city from holding it liable for such damages.

Meanwhile, the city continues to lose appeals to judgments against its use of the Psychemedics test. In October, the state’s Supreme Judicial Court affirmed a Civil Service Commission ruling that the Psychemedics test was “not enough to sustain the department’s burden of proving by a preponderance of the evidence that [the officer] ingested cocaine.”

In light of the SJC ruling, the signatories to last week’s letter called on the city to cease use of the Psychemedics test.

“The recent SJC decision makes it imperative for the city to address this problem now,” the letter reads.