Making sure that Boston police officers aren’t using drugs — that makes sense.
But testing applicants and officers in a way that costs the city millions in lawsuits and may produce inaccurate results — well, that’s a lot less defensible. With yet another judgment going against the city, it’s clear that the police need a better way to conduct tests.
The city tests officers by clipping a hair sample and then sending it to a company in Acton. Last month, citing shortcomings in the test, the Supreme Judicial Court ruled against the city and sided with a job applicant who’d been rejected after failing the hair drug test.
The city is suing the company that performs the test to recoup money that it’s shelled out to defend itself in court. Bizarrely, though, it also continues to use the same test, according to the organization Lawyers for Civil Rights, which has sued the city over the tests. In this legal and financial hole, wouldn’t it make a lot more sense for the city to stop digging?
The plaintiff in the latest case, Michael Gannon, was denied a job as a police officer in 2010 because he tested positive for cocaine. Gannon appealed to the state’s Civil Service Commission, which sided with him and ruled that relying on hair strands to determine drug use could yield false positives. That decision was overturned, but the SJC then sided with Gannon in a 6-1 ruling.
In Gannon’s case, the problems with the hair test, performed by Psychemedics, a company based in Acton, center around whether it can reliably distinguish between internal ingestion of cocaine and external contamination. Gannon had adamantly denied he had consumed cocaine in any form. To rule out external exposure, the company has said that it decontaminates hair samples by washing them thoroughly. But Justice Kimberly Budd, writing for the majority in the Gannon decision, raised concerns around the washing procedure’s effectiveness. “This is because external contaminants may become absorbed into the hair, and once absorbed, are resistant to removal," she wrote. “The ways in which substances, including controlled substances, can incorporate into the hair follicle vary and are not fully understood,” she wrote, citing scientific literature. “Although the test can identify the type of drug present in the hair sample, it cannot determine the way the drug became incorporated into the hair follicle."
In previous legal challenges to the hair test, plaintiffs have argued that the test is racially biased. A federal case against BPD filed by the Massachusetts Association of Minority Law Enforcement Officers and individual officers argued that false positives occur much more frequently with black police officers than those of other races. Plaintiffs noted that black people have higher levels of melanin in their hair, and point to studies that show that cocaine binds in higher concentrations to the melanin in dark hair.
Gannon, who is white, will now have the number one spot the next time the department hires new officers, according to the SJC ruling. But the department still uses the hair drug test, according to reports. Meanwhile, the city continues its litigation against Psychemedics to recover legal fees and the back pay it has had to pay. “There are no universal industry standards controlling the performance of hair testing," the city has argued in their case against Psychemedics, which is at the Mass. Appeals Court.
The city indicated that it’s reviewing its options. “What’s most important to me and the [Police] Commissioner is that we enforce a drug-free workplace policy to ensure the safety of the people we serve," Mayor Marty Walsh said in a statement. “The court’s decision is an opportunity for us to determine our options on how we can best move forward,” the mayor said in a statement.
A drug-free workplace in law enforcement is definitely important for public safety — nobody disputes that. The problem is the city’s reliance on a test that doesn’t offer a definitive answer on illicit substance use among officers and applicants. As Justice Budd wrote: “In short, although the test result could be seen as consistent with cocaine use, the opposite view is also reasonable.”
A test that indeterminate — and that vulnerable to lawsuits — isn’t worth keeping.