Officers Sue Over Use of Hair Drug Tests

SFGate.com

BOSTON (AP) --

The seven police officers swore they didn't use cocaine, yet their hair tested positive for the drug. The officers — all of them black — were promptly fired or suspended.

"I was in complete and utter shock," said Officer Shawn Noel Harris. "I know that I never used drugs a day in my life."

The Boston officers are now suing the police department, claiming the mandatory drug test is unreliable and racially biased. They say hair testing is unfair because drug compounds show up more readily in dark hair than light hair.

Their civil rights lawsuit is one of many legal challenges against hair drug tests, which are used by companies and police departments nationwide. Employers like the test because it can detect drugs up to three months after use; urine tests go back only a few days and can be easily altered.

But studies have found dark-haired people are more likely to test positive for drugs because they have higher levels of melanin, which allows drug compounds to bind more easily to their hair.

The Boston lawsuit says the officers may have had some kind of environmental exposure to cocaine, but that they didn't use the drug themselves. The former officers are seeking reinstatement to their jobs, back pay, and unspecified damages.

Six of the seven former officers had a second hair test conducted that came back negative within days of the positive result. Harris had another hair test, a urine test and a blood test. All were analyzed by a different laboratory and all came back negative.

"It was humiliating," he said. "People who I once considered friends or comrades in arms treated me differently. They looked at me differently."

Police Commissioner Kathleen O'Toole said the department believes the hair testing policy is sound.

"Our department's lawyers have certainly studied this and are prepared to go forward and defend the existing policy," O'Toole said. "To date, nobody has presented anything that's caused us to believe that we should abandon our current policy."

Boston police began testing hair in 1999, replacing urine tests. Their testing company, Psychemedics Corp., is the largest provider of hair testing for drug use, with clients including Fortune 500 companies and police departments in Chicago and Los Angeles.

William Thistle, Psychemedic's senior vice president and general counsel, said the company's tests are well-supported and approved by the U.S. Food and Drug Administration.

Each hair sample is thoroughly washed and soaked for an extensive period of time to remove any contaminants. If an initial test comes back positive, the sample is tested again, Thistle said.

"The fact is that the test is extremely reliable," he said.

But critics say it's far from perfect. Police are especially vulnerable because they can be exposed to drug residue on the job, they say.

Fort Wayne, Ind., narcotics detective Timothy Bobay tested positive for cocaine after a hair sample was taken from his forearm during a random screening last year.

The police chief moved to fire him, but Bobay vehemently denied using cocaine. He argued the positive test came from exposure to cocaine dust on the job three weeks earlier.

Bobay, who is white and has dark hair, had a hair sample taken from his head tested by a different laboratory and he also had a urine test. Both came back negative.

The petition to fire him was withdrawn after Psychemedics said it was unable to rule out environmental exposure to cocaine as the reason for his positive test, said Bobay's lawyer, Patrick Arata.

Under the substance abuse policy in Boston, officers who test positive for drug use are either fired or suspended for 45 days without pay and required to undergo rehab. Six of the seven police officers refused to sign rehabilitation agreements. The seventh officer signed the agreement so he could keep his job, but was later fired after testing positive in another hair test.

Dr. Bruce Goldberger, director of toxicology at the University of Florida College of Medicine, said he is more supportive of hair testing than he was five or 10 years ago because laboratory procedures have improved.

But the American Civil Liberties Union says the science is still questionable and discriminatory.

"Here you have police officers on the front line whose reputations have been horribly tarnished, if not destroyed, and who are out of a job because of a drug test that may have identified them for being guilty of nothing more than the color of their skin," said ACLU attorney Allen Hopper.