BPD hair drug test gets new hearing

Former Boston police officer Ronnie Jones has been fighting against his termination for more than a decade — and the drug test that led to his discharge.

Jones and other plaintiffs allege that the hair-based drug test used by the BPD incorrectly portrayed them as having used illicit substances, and that the test is especially likely to produce false positives when testing African American hair.

This case, and a similar one, have wound through several courts. Last Thursday, a federal court of appeals hearing left some seeing hope for progress.

“There’s very good momentum,” Ivan Espinoza-Madrigal, executive director for the Lawyers’ Committee for Civil Rights and Economic Justice, told the Banner. “The court expressed significant concern over the effect of the hair test as a drug screening mechanism because of the false positives coming up with black officers.”

The Lawyers’ Committee is representing Jones and the other plaintiffs, with WilmerHale contributing free co-counsel.

Hair test controversy

In 2002, Jones was discharged when the controversial hair-based test read him positive for drugs he says he never used. Under BPD policy he could admit to drug use and undergo suspension, drug counseling and three years of random urine testing, or be fired. He chose the latter.

Jones and other officers of color allege that when the Boston Police Department switched from urine-based drug testing, it adopted a new model that disproportionately produces false positives for blacks. The crux of the argument: African American hair texture makes it more likely to capture airborne particles, meaning that particles of cocaine should show up in the hair of individuals who are not users, but have been in an environment where there were traces of the drug. This presents a particular challenge in city environments, where traces of cocaine have been found on dollar bills and even elementary school desks, Oren Sellstrom, litigation director for the Lawyers’ Committee, said. And for officers working in a career where they may handle confiscated drugs, the likelihood of contamination is even higher.

Psychemedics, the company that designs the hair tests, states on its website that its tests are more effective than urinalysis because they capture evidence of cocaine months after the fact instead of days.

Entrenched stance

The long-running legal battle over the hair tests has fueled concerns that the city and BPD are not supportive of a diverse police force.

“Historically, if the Boston Police Department finds something that impacts people of color unfairly, they will go for it. They will always gravitate toward that thing,” Larry Ellison, president of the Massachusetts Association of Minority Law Enforcement Officers, told the Banner.

In 2005, a federal court of appeals ruled that the tests had disparate impact. In a related lawsuit, courts ruled in 2013 and 2014 that the hair tests were unreliable; the city appealed both times.

“It’s all highly problematic, and deeply troubling that the police department continues to fight both lawsuits,” Sellstrom said in a Banner phone interview. “It does not make a lot of sense, in our view, for the city to keep pouring time and energy and money into defending a test that has been found to be unreliable. So far, the city has dug in and not shown a willingness to either settle or look at changing the way they do business.”

The BPD said it was unable to comment on ongoing litigation.

Latest hearing

To effectively make their case that the test is racially biased, plaintiffs must argue several points, Sellstrom said. One is that the test has disparate impact. The second: that there are less-discriminatory alternatives the BPD could use; for instance, administering urine tests to confirm positives indicated by hair tests.

They succeeded with the former point in 2005, when the case was heard by the same appeals court. The judge at the time ruled the test had disparate effect and called for the plaintiffs to be reinstated, but did not speak to whether hair testing should be replaced with another method.

Meanwhile, the city will have to argue successfully that using the hair test is a business necessity, Sellstrom said.

During last Thursday’s oral arguments, an attorney for the city and BPD said that urine testing is more costly, and that there is no evidence that it will produce different results from the hair test, according to The Boston Globe.

Judge William Kayatta Jr, however, suggested that priority should be on accuracy, not expense.

“Isn’t it much better for the department to do something that reduces the likelihood of false positives?” Kayatta said, according to The Boston Globe. “Isn’t it better to keep people on the force?”