Black cops suing department over ‘false positives’ in hair tests

When police officer Ronnie Jones got a call from the police department back in 2002 informing him he had tested positive for cocaine, he was sure there was a mistake.

“I told them I don’t even drink,” he said. “I wouldn’t spend a dime on a beer, let alone cocaine.”

The officer told Jones to wait for a call from Internal Affairs, and then hung up.

“Within 20 minutes, Internal Affairs was by my house to retrieve my weapon,” Jones said.

The hair test police relied on initially found that Jones tested positive for cocaine with 5.12 nanograms of cocaine/10 milligrams of hair — one billionth of a gram over the department’s 5 nanogram limit. He requested a re-test that showed 2.4 nanograms of cocaine/10 milligrams of hair.

Like all officers who tested positive, Jones was given a choice. He could sign a form admitting he had used cocaine, take a 45-day unpaid suspension and agree to drug counseling and random urine testing over the next three years, or he could be fired. Jones would not sign the form.

He was fired.

Along with ten other defendants, Jones eventually joined a lawsuit against the department, filed by the Lawyers Committee for Civil Rights and Economic Justice, claiming that the hair test it used was unreliable. In a second lawsuit, Jones and other plaintiffs argued that hair testing produced a discriminatory result, with a higher percentage of false positives for blacks.

Scientific debate on hair testing

The Boston Police Department uses a hair test developed by Psychemedics, a company headquartered in Acton. The company searches for so-called metabolites of cocaine, chemicals formed when the drug is ingested. Unlike urine testing, which can detect cocaine only within two to four days of its use, hair testing is thought to be able to detect cocaine used at any point in the life of a strand of hair. Because hair strands can live for two to seven years, hair testing is thought to be more reliable than urine testing.

Psychemedics has long claimed the metabolites of cocaine its test detects in the hair can be used as irrefutable proof of ingestion. But numerous scientific studies over the years have found hair tests to be incapable of distinguishing between cocaine that has been ingested by a user and cocaine that has landed on human hair. Many of the cocaine metabolites that are produced when cocaine is ingested also are created in the process of manufacturing cocaine, according to a 2009 Department of Justice report.

Police officers and others who work in environments where powdered cocaine is handled are widely seen as susceptible to external contamination, although Psychemedics officials say they wash their hair samples to remove any external particles of drugs. David Kidwell, a toxicologist and research scientist at the Naval Research Laboratory, found that the company’s procedures can wash between 83 and 97 percent of external contamination, and concluded that “passive exposure can occur and generate false hair test results.”

The rising body of scientific studies challenging the validity of hair tests has had major consequences. After a four-year review of hair testing, the federal government chose, in 2008, not to adopt standards for hair testing, and noted that “significant issues have been raised by federal agencies during the review process which require further examination.”

The Massachusetts Civil Service Commission also found the scientific evidence against hair testing compelling. On Feb. 28, 2013, the Commission ruled that there was not just cause to discharge a tenured police officer solely on hair test results. The Boston Police Department appealed the decision.

On Oct. 6, 2014, Superior Court Justice Judith Fabricant upheld the Civil Service, ordering the reinstatement of Jones and five other plaintiffs with back pay from the time of termination.

Again, the Boston Police Department appealed that decision.

Laura Maslow-Armond, an attorney with the Lawyers Committee for Civil Rights and Equal Justice representing the plaintiffs, said the city is unlikely to win its latest appeal.

“These are administrative appeals,” she said. “There will be no new witnesses. No new arguments. The standard is deferential to the [Civil Service] agency.”

Arguing discrimination

In the second lawsuit, which alleges that the department’s use of the hair test had a discriminatory impact on blacks, the plaintiffs argued that blacks were more likely to fall prey to false positives than whites. Between 1999 and 2006, black BPD officers tested positive at a rate of 1.3 percent while white officers tested positive at .3 percent, and presented arguments demonstrating that the test is scientifically proven to be unreliable.

The plaintiffs further argued that the texture and treatment of black hair makes it more susceptible to contamination from airborne cocaine particles in the environments were officers work.

Despite testimony from former Commissioner Paul Evans that he noticed an increased disparity between the positive test rates for blacks and whites when the department switched from urinalysis to hair testing, a District Court judge found in 2005 that the plaintiffs had not proven case of racially disparate impact.

A 1st Circuit Court of Appeals judge then overturned that ruling, finding in favor of the plaintiffs, but did not rule on two key questions: whether the hair test was a business necessity and whether or not the plaintiffs were able to identify a less-discriminatory alternative to the hair test. The plaintiffs argued for urinalysis, but on August 6, U.S. District Court Judge Douglas Woodlock ruled on those questions, deciding against the plaintiffs, citing higher costs and questionable reliability of urinalysis.

A call for change

At a recent community meeting, held at the headquarters of the Massachusetts Association of Minority Law Enforcement Officers, black elected officials and civil rights activists called on the Police Department to settle the lawsuits with the fired officers, and reinstate the officers with back pay.

MAMLEO President Larry Ellison says the department’s continued use of the hair test, despite former Commissioner Paul Evans’ admission in 2002 that it has discriminatory impact against blacks, fits into a wider pattern of discrimination.

“It’s across the board,” he said. With anything that adversely affects officers of color, the department has the tendency to go with it. There’s a long history of racism in the department.”

The mayor’s press office did not respond to a query about the lawsuit challenging hair testing. On the case alleging discriminatory impact, spokeswoman Bonnie McGilpin issued a brief statement via email:

“Last week, the U.S. District Court ruled in favor of the City of Boston regarding hair follicle drug testing for Boston Police officers, and upheld the termination of two of its former officers. The City is pleased with the outcome of the case, and believes that this is in the best interest of public safety.”

Long wait for justice

Since Jones was terminated, he was unable to find work in Boston and moved back to his native Alabama, where he was able to live with family members. The fact that he was fired from the police department for alleged cocaine use barred him from many jobs.

Now a truck driver, and a minister at the Dexter Avenue King Memorial Baptist Church, Jones says he earns about one-third the pay he made as an officer.

He says he would like for the city to settle the case.

“I would like to see the mayor do the right thing for the city of Boston,” he said.