Appeals Court Finds That Boston Police Department’s Drug Screening Method is Flawed & Scientifically Unreliable

On Friday, October 7, in Thompson v. Civil Service Commission, a case filed on behalf of Boston Police Patrolmen’s Association (BPPA) members, the Massachusetts Appeals Court found that the Boston Police Department’s use of hair samples in drug screenings is scientifically unreliable. The Appeals Court affirmed a Superior Court order reinstating six officers with back pay and benefits.

After an exhaustive inquiry on the scientific reliability of the “hair test,” the Court found that a positive test was not conclusive on the question of voluntary drug ingestion, and that a positive test may actually be the result of hair contamination through environmental exposure. The Court found that the risk of a false positive test was great enough to require additional evidence before terminating an officer. With respect to the six reinstated officers, the Appeals Court agreed that additional evidence clearly outweighed the flawed “hair test” result.

Five reinstated officers – Ronnie Jones, Richard Beckers, Walter Washington, George Downing and Shawn Harris – are African-Americans who are also challenging the “hair test” on racial discrimination grounds in a separate federal lawsuit filed by the Lawyers’ Committee for Civil Rights and Economic Justice on behalf of individual officers and the Massachusetts Association of Minority Law Enforcement Officers (MAMLEO).

“The City of Boston has been fighting for years to defend a scientifically unreliable and discriminatory drug-screening vehicle that resulted in the wrongful termination of a disproportionate number of African-American police officers,” said Iván Espinoza-Madrigal, the Executive Director of the Lawyers’ Committee for Civil Rights and Economic Justice.

In the federal discrimination case, a court found that the “hair test” caused a statistically disparate impact on the basis of race. In 2006, for example, 71% of positive test results were assigned to African-American officers. The case remains pending in the U.S. Court of Appeals for the First Circuit.

“Diversity in police ranks is a key component of community representation and accountability,” added Espinoza-Madrigal. “Our communities are safer and stronger when minority officers have an equal opportunity to serve and when police departments reflect the neighborhoods they serve.” Nevertheless, the City of Boston continues to defend its scientifically unreliable and discriminatory drug test.

When the City makes the choice to defend scientifically unreliable and discriminatory practices, there are significant local costs that are borne directly by residents and taxpayers. Just in the last three years of the decade-long federal discrimination case, the City has spent more than $352,000 to defend the flawed “hair test.” In an era of scarce resources, it is fiscally irresponsible for the City to divert resources and funds to defending scientifically unreliable and discriminatory practices.

In the meantime, 75% of new police hires have been White, and Boston’s increasingly diverse populations remain significantly underrepresented in the police force. The BPPA’s victory in the Appeals Court will go a long way in helping to diversify the force.

In  Thompson v. Civil Service Commission, members of the BPPA are represented by Alan H. Shapiro and John M. Becker of Sandulli Grace, P.C.

The Lawyers’ Committee for Civil Rights and Economic Justice and pro bono counsel from WilmerHale represent individual African-American officers and MAMLEO in a separate ongoing federal discrimination challenge to the “hair test.”

The October 7th Appeals Court decision is available here.

The reinstatement of the Black police officers was featured in the Boston Globe, Boston Herald, Bay State Banner, The Take with Sue O’Connell on NECN, WCVB Channel 5, and across national news outlets through the Associated Press.