By Lucas Uhl
With protests against police brutality erupting across the nation, Massachusetts passed a law in 2020 to help prevent law enforcement misconduct in the state.
The new law, among other things, established the Peace Officer Standards and Training (POST) Commission. The nine-member commission is tasked with recertifying police officers to ensure that they are following uniform policies and standards.
A part of the recertification process, however, is raising First Amendment and open government questions. Specifically, a questionnaire designed to root out biased police officers is creating tension between the free speech rights of those officers and the right of citizens to know the potential prejudices of those serving their communities.
The questionnaire is administered in eight parts and must be completed by every police officer in the state before they can be recertified. The questions focus on the officer’s tax history; firearm possession; history with lawsuits, restraining orders, and discipline; social media posts; and organization affiliations. If an officer intentionally makes a false statement on the form, the commission will automatically reject the officer’s application.
A truthfully answered questionnaire alone will not cause a denial, but it could lead to further review by the commission. The police department heads, or their designees, then interview the officers, discussing their answers to the questionnaire to evaluate the officers’ moral character and fitness.
Last April, a group individual officers and a police union filed two separate lawsuits against the commission (here and here). The lawsuits were later consolidated and challenged the questionnaire on First Amendment and privacy grounds.
The challenges focused on the questions about tax history, social media posts, organizational membership and an additional question which required officers to list any other information relevant to their recertification eligibility or fitness to serve in law enforcement. Police officers, the plaintiffs argued, have free speech rights that would be chilled or improperly punished by the questionnaire requirements and privacy rights that could be infringed with the public disclosure of the information provided.
The Suffolk County Superior Court decided this case in June. Here is how the court addressed (or did not address) the First Amendment and open government questions:
Public Employees and Free Speech
The U.S. Supreme Court established a standard for when the government can punish the speech of its employees in Pickering v. Board of Education, 391 U.S. 563 (1968). While the Suffolk County Superior Court decision didn’t cite Pickering specifically, it did seem to rely heavily on the principles discussed in the case.
In Pickering, a high school violated a teacher’s freedom of speech when it fired that teacher for criticizing a local school board. The teacher submitted a letter to a newspaper in which he attacked the school board for its misallocation of resources. The Pickering court held that if a public communication is only “tangentially and insubstantially” related to the individual’s public employment, then the individual must be regarded as a member of the public and the communication cannot be the basis for dismissal.
Unlike the letter in Pickering, the questionnaire is directly connected to the police officers’ employment. But unless the officers intentionally provide false answers, the completed questionnaires cannot be used for dismissal or decertification. According to the commission, they are intended only to “elicit information and generate a conversation between the officer and interviewer.” Hovsepian, et al. v. Massachusetts Peace Officer Standards and Training Commissions, Case No. 2284-CV-00906, p.7–8 (Suffolk County, Massachusetts, Superior Court, 2022).
Based on this reasoning and the fact that the police reform law gave the commission the authority to vet out police bias, the court allowed the questionnaire to be used to help determine recertification eligibility. The decision, however, came with a caveat: to protect the First Amendment rights of free speech and association, each individual question must be sufficiently connected to the officers’ employment and, more specifically, the commission’s interest in eliminating police bias.
The Suffolk County Superior Court found the social media question to be unconstitutionally overbroad and vague and struck it from the questionnaire. One particular issue with the question is that the language asked whether the officer had posted anything in the last five years that “could be perceived” as biased:
“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 question which do not, by any reasonable measure, reflect on an officer’s ability to engage in biased-free police work.” Hovsepian, p.9.
Although the court struck this question, it did recognize that a more narrowly-focused question inquiring about the social media posts of police officers serves a compelling state interest and might be allowed under the First Amendment.
The court also struck the question that asked whether the officer had belonged to a discriminatory organization. The question is not substantially related to the commission’s goals, the court found, because it seeks more information than necessary to expose an officer’s biases.
The court noted that every Boston Police Department officer would have to answer “yes” to this question because the BPD was recently found liable for violating the Americans With Disabilities Act. This would not, the court determined, indicate that an officer actually held bias towards disabled people. However, like the social media question, the court stated that a more focused question related to discriminatory membership that has a stronger connection to eradicating police bias could be allowed:
“[T]he Court does not mean to imply that the Commission cannot constitutionally inquire into officers’ group memberships, but the question must be framed so that it is reasonably likely to elicit information that is an indicia of bias.” Hovsepian, p.14–15.
The court found the other challenged questions to be permitted under the First Amendment.
Officer Privacy and Public Records
The plaintiffs also argued that the questions violated officers’ right to privacy under G.L. c. 214, § 1(B) because the questionnaire could be subject to public disclosure under the Massachusetts Public Records Law.
Although there is a public records law exemption, G.L. c. 4, § 7, cl. 26(c), for personnel information that “may constitute an unwarranted invasion of personal privacy,” the exemption does not include “records related to a law enforcement misconduct investigation,” indicating that Massachusetts holds at least some police officer conduct to lesser privacy standards than other public employees. The Suffolk County Superior Court, however, declined to rule on whether the questionnaire answers will be considered public record.
In Massachusetts, there is significant legal authority prioritizing government transparency, generally, over officer privacy. The personnel information exemption normally excludes certain public employee information such as work evaluations and disciplinary documentation from public record. See Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792 (2000). Nevertheless, Massachusetts courts have consistently held that police officers have a lower expectation of privacy than other public employees.
The Hovsepian court explained this disparity by citing several Massachusetts cases, including Commonwealth v. Hyde and Guiney v. Police Commissioner of Boston. Hyde states that the higher standard of conduct expected of police necessitates a lower privacy expectation, while Guiney attributes this lowered privacy expectation to police “authority to command citizens, take them into custody, and use physical force against them.” See Commonwealth v. Hyde, 434 Mass. 594, 613 (2001); Guiney v. Police Comm’r of Bos., 411 Mass. 328, 336 (1991).
Massachusetts courts have even addressed privacy concerns over police questionnaires in the past. In 1975, the Boston Police Department commissioner required 140 officers to provide written answers to a number of questions about many of the officers’ disorderly and “outrageous” conduct during a Law Day celebration. The officers argued that they were off duty, the conduct was not criminal, and the questionnaire unconstitutionally invaded their privacy. The court found that police officers are subject to inquiry beyond their official conduct as long as the questions are not general and vague. See Broderick v. Police Comm’r of Bos., 368 Mass. 33 (1975).
In the spirit of these precedents, Massachusetts would likely consider the officer questionnaires public record. To effectively encourage good police practices and increase public trust, police officer conduct must be transparent. State governments bestow powerful authority to police officers. While this authority can be vital to the function of society, it can also cause tragedy, devastation and dysfunction when vested in the wrong hands.
Lucas Uhl is a second-year law student at Boston College Law School. He served as a legal fellow for NEFAC in the summer of 2022.
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