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Reliability of Hair Drug Testing at issue in Boston Police officer’s claim that he was wrongfully denied employment with the Boston Police based on an inaccurate drug test

A Boston police officer found himself on the wrong side of inaccurate scientific evidence when he was denied employment based on a positive hair drug analysis.  The Massachusetts Supreme Judicial Court is currently considering a case titled Boston Police Department v. Michael Gannon and The Massachusetts Civil Service Commissioninvolving the use of hair drug tests to determine eligibility for employment.  The Massachusetts Supreme Judicial Court recently heard oral argument in the case; the main focus of the argument is whether the hair drug test is a reasonable test of employment.  The Boston police department has a strict policy that any positive drug test results in disqualification from employment; the legality of that policy was not challenged in this appeal.

The appellant in this case, former Boston Police Cadet Michael Gannon, was passed over for appointment as a Boston Police Officer because a hair drug test he was given came back positive for cocaine. In addition to the fact that the accuracy of hair drug tests has been refuted by some scientific experts, Mr. Gannon had also taken five other hair drug tests as a part of the recruitment and certification process and all five came back negative for drug use. When he learned that he was being denied a position as a full Officer with the Boston Police Department based on the positive hair drug test, which he maintains was not accurate, Mr. Gannon filed an appeal to the Civil Service Commission to contest the decision. The Commission determined that because of the unreliability of hair drug tests, the Police Department did not have reasonable justification for refusing Gannon the position. Being dissatisfied with that result, the Department sought judicial review before the Superior Court.  The Superior Court reversed the Commission’s decision, and Gannon now appeals before the Supreme Judicial Court to have the Commission’s original decision reinstated.  The Boston Police officer argued that the Superior Court judge should have given difference to the findings of the Commission.

Oral Argument before the Massachusetts Supreme Judicial Court

Justice Kafker asked what were the finding of the Commission on the science; Justice Kafker stated that the science is confusing.  The defense called Dr. Benjamin as an expert finding hair studies unreliable as scientific evidence and reference that the scientific literature does not support the reliability of a hair test.  The officer did take a drug test the day after being denied the employment; the second test was below the threshold, meaning there was no determination of whether he was positive or negative.

The Boston police department argued that he tested over twice the cut off the level.  When the officer found out the results, he tested again but just missed the cut off level of a positive sample.  There was not enough cocaine to call it a positive sample according to the Boston police department.  Given the uncertainty in the science, Justice Kafker argued how do we get around the deference to the commission.  He asked since the science is not clear, are we stuck with the commissions findings. Justice Kafker stated that it can detect exposure, but it is not clear and that we do not know the answer whether the false positive can be from the environment so we cannot reverse the commission.  Justice Kafker further asked does the science say that the level a person is over relate to the likelihood that the test result can be from environmental factors.

There are many issues with the overall reliability of hair drug tests. The biggest issue that the Commission pointed out is that the testing procedure is not able to tell the difference between a drug being ingested and a sample being externally contaminated with a drug. In other words, there is no way for the test to establish that a positive result is actually due to drug ingestion by the test subject. Hair samples are easily contaminated by environmental exposure to traces of illicit drugs, and oftentimes even public areas contain contamination that could effect a hair sample.  In its decision the Commission pointed to a surprising study showing that 92% of US dollar bills are contaminated with trace amounts of cocaine. Due to the porous nature of hair strands,  samples can be easily contaminated simply by a non-user inhaling second hand smoke or touching a contaminated surface. While the hair drug testing process does involve decontamination, that process is often not effective at removing trace amounts of drugs.

This is not the first time that the reliability of hair drug testing has been challenged on this level. The Commission previously reviewed scientific evidence on this question in the Boston Hair Drug Test Appealsin 2013. In that case it was concluded that hair drug tests are not scientifically reliable enough to be used as sole grounds for termination of a public employee.

There are other types of drug testing that are widely accepted, including urine and blood tests. Methodologies like gas chromatography and liquid chromatography use technology to confirm findings of immunoassay (a biochemical test that identifies a substance based on its ability to bind to an antibody) on urine samples or even to detect drugs from a breath air test. Despite the reliability issues of hair drug testing and the availability of more reliable drug tests, law enforcement agencies continue to use hair drug testing. This most recent case before the SJC highlights the importance of scientifically reliable tests in an employment context, and its also important in the context of criminal justice. Unreliable testing can result in misleading evidence and false convictions, which is why its of the upmost importance for law enforcement and the courts to stay abreast of  which testing methods are supported by current scientific studies.

Based on the oral argument, I would expect that the SJC will reverse the decision of the Superior Court and reinstate the decision of the Commission, finding that the Superior Court judge should have given deference to the findings of the Commission.

For further reading on this case, you can read Jerome Campbell’s excellent article from WBUR news on the case.  

To listen to the oral argument of the case you can visit the Suffolk Law School Website.

To learn more about current issues in criminal defense you can follow Attorney DelSignore on Twitter.

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