BOSTON — The new state licensing commission for police officers for now can’t ask cops its planned questions about whether they’ve posted anything “that you believe could be perceived as biased” or if they’ve belonged to any organization that has “unlawfully discriminated” against anyone based on race, gender or other factors, a judge has ruled while allowing the rest of the questionnaire.
Suffolk Superior Court Judge Jackie Cowin issued the preliminary injunction against those two of the eight questions, writing that they will be “stricken from the questionnaire” that many officers are supposed to fill out by this summer under the certification law.
“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,” Cowin wrote in conclusion in a copy of the Monday decision obtained by the Boston Herald.
She added: “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.”
The Peace Officer Standards and Training, or POST, Commission, written into law in 2020, has been seeking to have officers fill out this questionnaire to determine if they have “good moral character” as part of its licensing process.
Cowin did continue, “Nothing in this decision is meant to prevent the Commission from requiring officers (both those who have not yet answered and those who have had their answers stricken) to answer revised questions that meet constitutional requirements.”
The two questions that will be tossed come as the twin lawsuits from various policing groups and unions continue.
The Boston Police Superior Officers Federation said in a statement that it’s “pleased” with the ruling.
“Today’s ruling signals that even police reform and the officials tasked with implementing it must adhere to the law,” union president Jeanne Carroll said in a statement. “Up to now, the Commission has acted as if they were written a blank
The questions are:
No. 6: “In the last five years, have you ever 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, provided you were at least 18 years old at the time? If yes, please provide each such public communication, and details. For these purposes, “communications” include, without limitation, posts, comments, and messages; and “public” communications are those that were made available to three or more people other than you.”
And No. 7: “Do you currently belong, or have you 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? If so, please provide details regarding each such organization.”
The judge agreed with the assorted plaintiffs, who include the statewide MassCOP union and city labor groups the Boston Police Superior Officers Federation and Boston Police Detectives Benevolent Society, on how No. 6’s “indiscernible standard of what ‘could be perceived as biased by unknown third parties” seems “impossible to answer.”
And on No. 7, the judge brought up as an example the fact that the Boston Police Department previously has been found liable under the Americans With Disabilities Act, which means that technically all of its cops would have to answer in the affirmative. And that, she said, seems “by and large is irrelevant” to whether any individual officer actually has any “animus” toward the disabled.
The judge did write that there are way of asking both about social media and organization membership that could work — just that these versions, as currently written, don’t, she said.
The plaintiffs were also asking for other questions to be thrown out, including one asking if the cop was current on all tax payments. The other they took issue with in particular was one that asked that if “thinking broadly,” if they had any other information that “may be relevant, directly or indirectly, to your eligibility or fitness to be recertified as a law enforcement officer with this law enforcement agency?”
The judge said those questions could stand, and, more broadly, the questionnaire as a concept was acceptable. Similarly, the “good moral character” standard has been approved by the court previously and “is used in many professional licensing schemes,” so it appears to pass the smell test, she wrote.
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