Chiefs May Polygraph Police Officers Suspected Of Criminal Activities;

In a decision highly anticipated by the law enforcement community in Massachusetts, the Supreme Judicial Court Wednesday ruled that the state’s ban on lie detectors does not apply to police officers suspected of “criminal activity” – even to police officers who have received full immunity from state criminal prosecution.

General Laws Chapter 149, §19B prohibits public and private employers from subjecting employees to lie detectors for any reason. The law was first enacted by the legislature in the 1950’s. At that time, polygraph proponents (including many manufacturers) were aggressively pushing these magic boxes. The legislature, recognizing that polygraphs then, as they are now, are nothing more than junk science, passed the law to protect workers. The statute does contain a narrow exception for “lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” Although this language clearly limits polygraphs to the context of criminal investigations, the SJC basically ruled that the situation need not involve criminal investigation or prosecution, so long the employee is a police officer.

In the case of Furtado v. Town of Plymouth (SJC-10049) (May 28, 2008) [http://socialaw.org/slip.htm?cid=18212&sid=120], the police department suspected that Police Officer Furtado sexually abused two minors. (He later was cleared of these allegations.) During its administrative investigation, the Town ordered Furtado to submit to a polygraph. Facing criminal allegations, the officer duly exercised his right to remain silent unless granted full transactional immunity from any criminal prosecution. (This right derives from Article 12 of the Massachusetts Constitution, and is broader than the right against self incrimination contained in the Fifth Amendment to the US Constitution. It was affirmed by the SJC in the case Carney v. Springfield, 403 Mass. 604 (1988), and is now generally referred to as “Carney” rights.) The Town successfully arranged for Furtado to receive this immunity.

As a result of being immune from criminal prosecution, the officer reasonably argued that he could not be subject to a polygraph. After all, Section 19B’s narrow exception for lie detector tests should not apply if there is no “criminal investigation.” The Appeals Court disagreed. The SJC opted to review the decision and affirmed the result. Sandulli Grace, PC Attorney Bryan Decker, along with John Becker and Patrick Bryant, filed a friend-of-the-court brief on behalf of the Massachusetts Coalition of Police, AFL-CIO.

Decker’s brief presented a wealth of evidence that underscored the scientific unreliability of the polygraph. (Indeed, the SJC itself has deemed polygraphs to be inadmissible in court.) Decker also presented cases from other jurisdictions that have struck down polygraph statutes as unconstitutional where the statute treats police officers differently than other public employees. The SJC, which has a record of being indifferent to the civil rights of police officers, ignored these arguments.

The SJC ruled that a public employer may subject an officer to a polygraph test so long as there is “an alleged crime in the picture (not, for example, mere violation of a departmental regulation).” The Court said it is irrelevant if criminal prosecution, as in Furtado, is impossible.

Given the skimpiness of statutory language to support its argument, the SJC supported its argument through the extraordinary measure of citing draft bills that the legislature never enacted. In order to reach the result that police officers may be polygraphed, the SJC looked at language in amendments to the polygraph law that had been rejected by the Legislature years ago. Distressingly, the SJC did not rely on ACTUAL amendments to the law, amendments that show a steady intent of the legislature to protect police officers along with other employees. Nothing in the legislative history suggests that the legislature intended to create an entitlement for Chiefs to harass employees through junk science.

In a bizarre logical twist, the SJC claimed that public employers would face “a Catch-22 situation” if forced to apply the laws as written. According to the Court, prohibiting polygraphs to officers immune from state criminal prosecution “would deprive police departments of their ability to order the lie detector tests of officers accused of serious misconduct violating the criminal laws of the Commonwealth, a tool that the Legislature has expressly granted them.” This is simply not true. A “Catch 22” is when “you’re da#$ed if you do and you’re da#$ed if you don’t.”  Here, the legislature has made it clear that employers’ cannot require polygraphs absent a criminal.  A grant of immunity AUTOMATICALLY means that no criminal investigation is possible.  Put simply, if there is no criminal, how can there be a “criminal investigation?” Thus, no criminal investigation, no polygraph.  So, the ultimate impact of the collision of Article 12 and the polygraph statute is that you can’t coerce a public employee into being polygraphed.  That result is consistent with the legislative intent of both protections, and is the opposite of a Catch 22. The Court takes this position even though the statute expressly permits the police to use the polygraph only in actual criminal investigations, and a decision in Furtado’s favor would not have changed that the legislature’s intent to limit the use of polygraphs to this situation. Someone reading the decision might conclude that the SJC is more sensitive to the needs of public employers than police officers.

There is still hope. The SJC suggested that polygraphs of police officers may be permitted only where “the crime being investigated [has] some connection to the employee’s job.” Arguably, polygraphs about certain off-duty conduct remain illegal.