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Cocaine test used by BPD too unreliable to serve as only reason to reject an officer candidate, court rules

The Supreme Judicial Court today ordered the Boston Police Department to put Michael Gannon at the top of its next list for available slots for patrolman - a job he has been trying to get for ten years despite a positive result on a test for cocaine.

The state's highest court said that the test has proven too unreliable to be the sole reason to exclude somebody from a police career and that it agreed with the state Civil Service Commission that BPD had failed to provide other proof that Gannon had used cocaine; that, in fact, Gannon's actions and statements after learning of the positive result in 2010 strongly suggested he was not a coke user.

At issue is a test that involves hair samples required of BPD applicants after scoring high enough on a civil-service exam. The samples are tested by two laboratories for the presence of various illicit substances, and in 2010, Gannon's sample came back positive for cocaine.

But, the 6-1 majority on the court said, there are just too many problems with the test to make it the sole determining factor. Hair samples are washed at least five times to try to remove any cocaine a person might have accidentally come into contact with, theoretically leaving only cocaine that a person had ingested and which had wound up inside hairs. But "environmental" cocaine can still wind up deeply embedded in hair, making it difficult to remove even after five washings, the court said, adding there is also an issue with false positives due to the presence of legal drugs that could wind up in somebody's hair, such as the lidocaine routinely used by dentists.

And Gannon provided proof to buttress his claim he was shocked by the result and had never used cocaine, such as agreeing to submit a new sample for an immediate re-test, which somebody who had actually used cocaine would likely not want to do, the court said.

The day after Gannon learned of the test result, he provided a second hair sample for testing by the same laboratory. Although the result was not zero, it was below the level considered to be "presumptively positive."

The court noted that Gannon's hair had tested negative for cocaine in 2006, 2007 and 2008, when he was in a BPD cadet program.

BPD did not offer Gannon a slot in 2010 and denied him again in 2012. Although its denial letter to him in 2013 did not mention the failed 2010 drug test, BPD acknowledged it was why it did not offer him a position in 2012 in testimony before the Civil Service Commission.

The court agreed with the commission in denying a BPD argument that even aside from the fact it doesn't want drug users on the force, it also doesn't want people with "poor judgment," which it said Gannon showed by agreeing to have his hair tested even though he knew there was a good chance it would test positive. In fact, the court said:

[T]he commission concluded that the department had failed to demonstrate Gannon's prior drug use by a preponderance of the evidence. Implicitly, the commission likewise concluded that the department had failed to demonstrate Gannon's "poor judgment" by a preponderance of the evidence, as an individual who had not used drugs would have no reason to avoid submitting a hair sample for testing. We hold that this conclusion was supported by substantial evidence, that is, "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6).

The court concluded:

This case is not about whether drug use provides reasonable justification for the department to bypass an applicant for a position as a police officer. The commission made a determination that, by itself, the Psychemedics hair drug test was not enough to sustain the department's burden of proving by a preponderance of the evidence that Gannon ingested cocaine. Having fully examined the administrative record, and having taken into account both the supporting evidence as well as that which "fairly detracts from the supporting evidence's weight," Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 385, 390 (1999), we conclude that the commission's determination was supported by substantial evidence. We further conclude that the commission employed the correct standard and that its decision contains no error of law. We therefore decline to disturb it.

PDF icon Complete Gannon ruling232.9 KB


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Now they'll say, "Oh you're too old". I feel bad that for him that one faulty test messed up his whole career plans.

Voting closed 29

Serves him right for not having a relative already on the force.


Voting closed 37

I have many relatives on the BPD and I never got hired.

Voting closed 13

Looks like the BPD still has some standards for competence.

Voting closed 10

In the life of the city of wonderful situations.

Voting closed 11

So, the BPD is arguing that it's "poor judgment" to follow their own instructions in order to become a police officer.

Convenient for them, because if he had shown "good judgment" by refusing, they would also have refused to hire him.

If that's the standard the Boston police department uses, there's nothing Marty Walsh can say about the BPD that will give me any confidence in their judgment or decision-making. (It's not "anti-cop" to want a competent police department, that is expected to obey the same laws as everyone else.)

Voting closed 23

"You must do X to get hired, but doing X means we can't hire you."

Voting closed 26

Ah, BPD's Catch 22.

Voting closed 6

A decent dig into old information will quickly locate additional people that were refused a job for similar reasons.

I know someone who was refused because the cough medication he was taking for a cold happened to also give a low-end positive for codeine.

You may also want to note that poppy seed muffins also leave trace amounts in your system that can count against you.

Albuterol inhalers (used by asthmatics) will also cause you to fail a breathalyzer test at a sobriety check point or if the officer just "thinks" you may be impaired.

These testing systems have been used for many years -- decades and more -- and may have been deemed state-of-the art in their days, but need to be revisited and updated.

Voting closed 13

I don’t know if I’m reading this wrong or what. Is the BPD/City saying that if he never submitted to a second drug test (which he did and passed) that they would’ve hired him?

Voting closed 17

Does that mean one can get cocaine deeply embedded in one's hair just by walking down the street? Or does it mean that one can get cocaine deeply embedded in one's hair by being around others using cocaine? If it can only happen by being around cocaine, maybe that's where the poor judgement comes in.

Voting closed 9

Is the cocaine you can find on just about any used 20 dollar bill. It's not like coke heads clean off the bills after snorting a line in a bar or nightclub bathroom. That money gets around. Not to make a racial issue of this but Michael Gannon is Black.

Voting closed 7

Why did you mention his skin color?

Voting closed 6