For more than a decade, officers of color in Boston have challenged the Police Department’s use of a controversial hair test used to screen the force for drug use. Now, the fate of that test rests with a federal appeals court.
The mandatory hair test, which replaced a urine test, is given annually a month before officers’ birthdays. Officers who fail the test can agree to participate in a drug rehabilitation program and are then subject to random urine tests.
In a 2005 lawsuit, the Massachusetts Association of Minority Law Enforcement Officers and 10 former officers alleged the test is discriminatory because black officers’ hair texture makes them more susceptible to testing positive when they’re really not. The case has moved through federal district and appeals courts over the years and has wound up back before the US Court of Appeals for the First Circuit.
During a hearing Thursday, Lisa Pirozzolo, an attorney representing the Lawyers’ Committee for Civil Rights and Economic Justice, argued that the test is “not a reliable indicator of drug use” and that evaluating officers for substance abuse should include a urine test. The Lawyers’ Committee filed the lawsuit on behalf of the officers.
But Helen Litsas, an attorney for the city and the Boston Police Department, said urine testing would cost the city more money, and there was no evidence adding the test would reverse the outcome of errant hair tests.
“We don’t have any analysis of what the hair testing plus urinalysis would produce,” she said.
But the judges said such proof did not seem necessary because it simply made sense that including a urine test would help identify hair tests with wrong results.
“Isn’t it much better for the department to do something that reduces the likelihood of false positives?” said Judge William J. Kayatta Jr. of the US Court of Appeals for the First Circuit. “Isn’t it better to keep people on the force?”
The judges suggested, though, they may not eliminate the hair test.
“To suggest we’re going to find the test not valid . . . I don’t know of any other test that has that high of an accuracy rate,” Kayatta told Pirozzolo, the attorney representing the officers.
It could take weeks before the judges make a decision.
Ivan Espinoza-Madrigal, executive director of the Lawyers Committee for Civil Rights and Economic Justice, said he hopes the judges return the case to district court so it can be “thoroughly vetted.”
“The hair test has a discriminatory impact,” he said. “The people affected by this are people of color. Things like the hair test are further impediments to diversifying the police force.”
Larry Ellison, president of the Massachusetts Association of Minority Law Enforcement Officers, said he hopes the court rules in the officers’ favor.
“The department historically finds a policy that adversely affects people of color and they go with it,” Ellison said. “I’m hoping they will see that this test is flawed.”
Mayor Martin J. Walsh’s office declined comment, citing the ongoing litigation.
According to the only data immediately available, the city has spent more than $352,000 since July 2013 fighting the case.
In a related case, the Massachusetts Civil Service Commission has determined that the hair test is unreliable and ordered the Boston Police Department to reinstate six officers who were fired because of positive test results. The city is appealing that decision.
In 2007, the department modified the hair test to include taking two hair samples to be tested by the department, said police spokesman Lieutenant Detective Michael McCarthy.
An officer can also pay to have a third sample tested by Quest Laboratories.