Social Media, Membership Questions Declared Inappropriate in Police Recertification

Just days before the deadline for thousands of law enforcement officers to recertify, a judge ruled that two of the eight questions the Massachusetts Law Enforcement Officer Standards and Training Commission asks as part of the process are out. of the limits and any answers to those specific questions the questions that the commission has 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 would likely succeed based on the merits of their arguments. The Massachusetts Police Coalition, the Boston Federation of Senior Police Officers and the Boston Police Detectives Benevolent Society argued in arguments that a recertification question related to social media posts is too broad and vague and that a question about membership in any group that illegally discriminates is unconstitutional as written.

“The Commission is directed to ask officers Questions 6 and 7, in their current form, as part of the recertification process,” Cowin wrote. “Officers who have not yet completed the questionnaire because they have been granted extensions to do so do not need to answer questions #6 and 7. For officers who have already submitted the questionnaire and answered questions #6 and 7 in their current form , the responses may not be used, directly or indirectly, as a basis for recertification denial.”

However, Cowin also made it clear in the ruling 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 has emerged as one of the sticking points for some police officers. When the plaintiffs filed the lawsuit in April, they took issue with “a series of highly invasive, inappropriate, unfair and irrational questionnaires.”

But while the plaintiffs sought to remove four questions from the POST questionnaire, Cowin only ordered that two be changed or deleted. The judge also denied a motion by the New England Police Benevolent Association to prevent the POST Commission from using any questionnaires.

“The POST Commission considers the questionnaire to be an essential element of the recertification process, as it is designed to determine an officer’s moral character and suitability for employment in law enforcement, and the Court rejected the efforts of the plaintiffs to prohibit the Commission’s use of a questionnaire,” POST Commission Executive Director Enrique Zúñiga 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 did not specifically say whether the POST Commission will rewrite the questions or discard them.

The questionnaire, as drafted before Cowin’s order, included eight questions, for example, is the officer current on his tax payments, has he ever had a restraining order issued against him, has he been a civil defendant accused of acting in a violent or abusive manner, has been licensed to possess a firearm, has been subject to a suspension of more than five days, has been a part of any group that unlawfully discriminates against people, and if there is something more relevant to his “eligibility or fitness to be recertified as a police officer.” official.”

The High Court ruled that Question 6, which asks whether a recertification applicant in the past five years “sent or displayed a public communication on social media that you believe could be perceived as biased against someone based on their actual race, ethnicity or perceived”. , sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status, or socioeconomic or professional status”—was written to be too broad. But Cowin said the court “agrees with the Commission that any investigation over officers’ social media communications would pass the constitutional test.

“Since… the question uses an imperceptible standard of what ‘could be perceived’ as biased by unknown third parties, countless communications get caught up in the sweep of questions that in no reasonable way reflect an officer’s ability to engage in bias-free policing,” Cowin wrote.

The second question Cowin ruled was off limits if a recertification applicant belongs or has ever belonged “to any organization that, at the time you belonged, unlawfully discriminated (including limiting membership) on the basis of race.” actual or perceived ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status, age, or socioeconomic or professional status.”

“Here, there is not even a rational relationship between the Commission’s goal of uncovering bias in policing and the information sought in question #7, because the question requires disclosure of membership in the group that says nothing about whether an officer harbors bias,” Cowin. wrote. “Specifically, there are countless groups that have been found responsible for unlawful discrimination, but membership of which, under no reasonable measure, would provide any indication of bias.”

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

“Therefore, every officer in the BPD (and many other departments, no doubt) would have to answer ‘Yes’ to question number 7, but doing so would convey no information as to whether he actually harbors any grudges toward the disabled,” he wrote. Cowin.

Zúñiga said the POST Commission, pursuant to the Superior Court ruling, “will not consider any responses to Questions 6 and 7 in the current recertification process for officers whose last names begin with A through H.”

Similarly, the Commission directs Police Chiefs not to consider any responses to Questions 6 and 7 when certifying whether an officer is of good moral character and fit for employment for any officer whose recertification application has not yet been processed. presented,” he said. he said she.

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

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

Zuniga said in his statement Tuesday that the POST Commission “has processed most of the submissions from officers with last names AH and expects most of them to be recertified.”

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