Social media, membership questions ruled inappropriate in police recertification

Just days before the deadline for thousands of law enforcement officers to be recertified, a judge has ruled that two of the eight questions that the Massachusetts Peace Officer Standards and Training Commission asks as part of the process are out of bounds and any responses to those specific questions the commission already received should be ignored.

Superior Court Judge Jackie Cowin ruled Monday that the plaintiffs in a lawsuit filed against the POST Commission this spring were likely to succeed on the merits of their arguments. The Massachusetts Coalition of Police, Boston Police Superior Officers Federation and Boston Police Detectives Benevolent Society contended in the arguments that a recertification question dealing with social media postings is too broad and too vague and that a question inquiring about membership in any groups that unlawfully discriminate is unconstitutional as written.

"The Commission is enjoined from asking officers Question Nos. 6 and 7, in their present form, as part of the recertification process," Cowin wrote. "Officers who have not yet responded to the questionnaire because they were granted extensions to do so need not answer Question Nos. 6 and 7. For officers who have already turned in the questionnaire and answered Question Nos. 6 and 7 in their current form, the answers may not be used, directly or indirectly, as a basis for denial of recertification."

Cowin also make clear in the ruling, though, that the POST Commission could seek much of the same information by editing the questions in a way that would address the court's (and plaintiffs') concerns.

As the POST Commission has developed the framework for recertification in recent months, the questionnaire emerged as one of the sticking points for some police officers. When the plaintiffs filed the suit in April, they took issue with "a series of highly invasive, improper, unfair, and irrational questionnaires."

But while the plaintiffs sought to strike four questions from the POST questionnaire, Cowin only ordered that two be changed or removed. The judge also rejected a motion from the New England Police Benevolent Association to stop the POST Commission from using any questionnaire at all.

"The POST Commission considers the questionnaire an essential element of the recertification process, as it is designed to determine an officer's moral character and fitness for employment in law enforcement, and the Court rejected the plaintiffs' efforts to enjoin the use of a questionnaire by the Commission," POST Commission Executive Director Enrique Zuniga said in a statement Tuesday.

Zuniga said the POST Commission plans to review the questionnaire before it is used again in future recertification rounds, but he did not say specifically whether the POST Commission will redraft the questions or scrap them.

The questionnaire, as drafted before Cowin's order, included eight questions, such as whether the officer is current on tax payments, has ever had a restraining order taken out against them, has been a civil suit defendant accused of acting violently or abusively, has been licensed to possess a firearm, has been subject to a suspension of more than five days, has been part of any group that unlawfully discriminates against people, and whether there is anything else relevant to their "eligibility or fitness to be recertified as a law enforcement officer."

The Superior Court ruled that Question 6 — which asks whether an applicant for recertification has in the last five years "sent or displayed a public communication on social media that you believe could be perceived as biased against anyone based on their actual or perceived race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status, or socioeconomic or professional level" — was written to be too broad. But Cowin said the court "agrees with the Commission that some inquiry into officers' social media communications would pass constitutional muster."

"Since ... the question uses an indiscernible standard of what 'could be perceived' as biased by unknown third parties, innumerable communications are caught up in the sweep of the questions which do not, by any reasonable measure, reflect on an officer's ability to engage in biased-free police work," Cowin wrote.

The second question that Cowin ruled was out of bounds asked whether an applicant for recertification belongs or has ever belonged "to any organization that, at the time you belonged, unlawfully discriminated (including by limiting membership) on the basis of actual or perceived race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status, age or socioeconomic or professional level."

"Here, there is not even a rational relation between the Commission's goal of ferreting out bias in policing and the information sought in Question No. 7, because the question requires disclosure of group membership that says nothing about whether an officer harbors bias," Cowin wrote. "Specifically, there are innumerable groups which have been found liable for unlawful discrimination, but membership in which would not, by any reasonable measure, provide any indication of bias."

Cowin cited a few examples in the ruling: the Catholic Church, Boy Scouts of America and the Boston Police Department, which in March was ruled to have violated the Americans With Disabilities Act by requiring fitness or mental exams for personnel returning from leave.

"Thus, every officer in the BPD (and numerous other departments, to be sure) would have to answer 'Yes' to Question No. 7, but by doing so would convey no information about whether she actually harbors any animus toward the disabled," Cowin wrote.

Zuniga said that the POST Commission, consistent with the Superior Court ruling, "will not consider any responses to Questions 6 and 7 in the current recertification process for officers who have last names beginning with A through H."

"Similarly, the Commission instructs Chiefs of Police to not consider any responses to Questions 6 and 7 in attesting as to whether an officer is of good moral character and fit for employment for any officers whose application for recertification has not yet been submitted," he said.

The law that created the POST Commission certified all officers who completed training by July 1, 2021 and set out the three-year cycle of recertification based on each officer's last name. All law enforcement officers with last names starting with a letter A through H are supposed to be recertified by July 1, 2022, and the deadline for all agencies to submit information about those officers was June 15, though departments representing thousands of officers were granted extensions.

The POST Commission estimates that there are 8,581 officers up for recertification in this first round, and Zuniga told commissioners last week that the necessary information to process the recertifications of 6,127 officers had been successfully submitted. Another roughly 2,200 officers work for departments that were granted 30-day extensions to submit additional information, including the state's two largest departments — Mass. State Police and Boston Police.

Zuniga said in his statement Tuesday that the POST Commission "has processed most submissions of officers with last names A-H and expects that the majority of them will be recertified."