If you want to join a police force, you need to pass a drug test. But when one Boston police cadet failed hers, she blamed the testing method and sued the department.
Her federal case finally went to trial this week after more than a decade of technical rulings, and a lot of people are watching.
The cadet, a black woman named Keri Hogan, lost her job after her hair tested positive for trace amounts of cocaine, which she swore she’d never done. So she and a group of other black officers who said they’d experienced similar discipline sued the Boston Police Department in 2005 over its use of mandatory hair analysis for drug testing. The method, commonly used by departments, can lead to false positives for African-Americans, the lawsuit claims.
But beyond Hogan, the verdict could have far-reaching consequences for labor policies and forensic science. If the judge forces the Boston Police Department to adopt an alternate drug testing method, the decision could encourage other police departments to rethink their policies related to drug testing, which departments sometimes order at random or after shootings and other incidents. A decision in favor of the officers could also signal changes for probation and family courts, which sometimes rely on hair analysis for drug testing. Even the private sector could follow suit.
“This is yet another challenge to the idea that your hair can tell a story — that your hair can contribute to a narrative about you,” Daniel Medwed, a law professor at Northeastern University, said. “And that’s a fallacy.”
Testing hair for drugs involves a chemical process by which forensic scientists can detect trace amounts of substances in the follicle. It’s preferred over urine samples because hair can reveal drug use further in the past. But hair testing can’t always reliably determine whether a compound originated from internal or external sources. “For example,” said Medwed, “if you’re exposed to secondhand smoke, it’s possible for your hair to show trace amounts of that.”
Hogan’s lawsuit argues that African-Americans’ hair naturally leads to more false positives. First, the chemical treatments many African-Americans use on their hair can damage the cuticle and increase the risk of contamination from the environment, her lawyers argue. Darker hair also contains more melanin, which cocaine binds to, experts told the Associated Press.
Despite political pressure over the last several years, the federal government doesn’t currently recognize hair as reliable for drug tests. Various studies have also found the potential for racial bias for precisely the reason Hogan sued over: that African-American hair picks up contaminants in the environment more easily. Despite these issues, hair analysis is the fastest-growing drug testing method in the U.S., according to a 2015 study from Quest Diagnostics. Urine testing, however, is still the most common.
After more than 10 years of district and appellate decisions in the case — and $1.6 million in court fees out of the City of Boston’s coffers, according to the Boston Globe — the 1st Circuit Court of Appeals decided that a “reasonable” judge or jury could see that the police department refused to adopt an alternative method. The case went to bench trial on Monday, and the Lawyers’ Committee for Civil Rights and Economic Justice, representing Hogan and the other officers, want a court order that will admit Hogan into the police academy.
The Boston Police Department did not respond to a request for comment.
Labor unions have watched the case closely as it’s traveled through the system because of its potential to change reliance on hair analysis. “This is the test case that everyone is watching,” Lewis Maltby, president of workers’ rights nonprofit National Workrights Institute, told the AP.
But the tide started to turn against other forms of problematic forensic testing, especially involving hair, years ago.
Although the process has become much less common in recent years, some police departments and investigators still use a process called hair microscopy to identify suspects and gather evidence. A trained expert essentially eyeballs two pieces of hair — one from a crime scene and one from a suspect — to determine if they match. It’s even less reliable than hair analysis, and no national standards exist for the process.
The FBI’s forensic experts, for example, once confused an African-American man’s hair with a dog’s hair once; he served 23 years in prison before DNA evidence exonerated him. And in almost one-fourth of the 200 exonerations using DNA evidence, hair microscopy contributed to the conviction, according to the National Association of Criminal Defense Lawyers. It’s unclear if the Boston Police Department uses hair microscopy.
While hair microscopy relies simply on human observation, hair analysis for drug testing has roots in chemistry. It’s apples to oranges in some ways, but the processes fall under the same umbrella of problematic forensic testing that some police departments and laboratories still rely on.
“The results [of the case] would have an indirect impact on the larger question of hair analysis in litigation,” Medwed added. “It’s another piece of this very disturbing puzzle.”
Cover image: A forensic scientist looks through a microscope at the state crime lab, Thursday, July 6, 2017, in Taylorsville, Utah. Kidnapping victim Elizabeth Smart and Sen. Orrin Hatch, R-Utah, toured the new state crime lab Thursday. (AP Photo/Rick Bowmer)