Illegally Secret Cop Drug Policy Released

Former pot smokers, ravers and drunk drivers are all welcome to join New Haven’s police force.

Former steroid-taking bodybuilders, acid trippers, cocaine sniffers, and recovering opioid users need not apply.

Those categories of disqualifying drug use are set out in a policy that the police department illegally discussed behind closed doors and then illegally withheld from the public for more than a year.

The police department released it to the Independent on Thursday afternoon following an order to do so by the Connecticut Freedom of Information Commission.

The rules themselves in the ​“Employment Drug Policy,” which took effect in January 2018, officially codify New Haven’s move away a ​“zero tolerance” approach to applicants’ past drug use, especially for marijuana.

Background investigators can now be much more lenient about candidates’ past toking, as the department tries to recruit more racially diverse classes of cadets. That change came out of a recommendation by the mayor’s community policing task force.

“In recent years this culture has grown more accepting of marijuana use – in palliative care, for medicinal purposes, and increasingly, in a trend toward its decriminalization,” Mayor Toni N. Harp said in a statement. ​“I think new standards applied to potential police department recruits in New Haven could be seen as a reflection of marijuana’s new legal status in particular.”

Aside from bringing that one aspect up to date, the rest of the policy (all of which appears in this story in italics, and can be downloaded here) has gaps.

It doesn’t set specific rules for whole classes of commonly abused substances, uppers and downers.

It singles out a medication that’s rarely abused.

It equates drunkenly breaking the law with legally getting high.

And it may even violate state law by discriminating against medical-marijuana patients.

Board of Police Commissioners Chair Anthony Dawson called the policy a good first step. He said the board may need to revisit some of its specifics, including to clarify the policy for abuse of prescription drugs.

“At a later date, we may review some of the broader issues,” Dawson said, because raiding medicine cabinets wasn’t among ​“the issues we were faced with.”

“Some of this stuff is brand new,” Dawson added. ​“We went through it just to revise the policy. I know we didn’t dot our I’s and cross our T’s. But other departments are nowhere near as flexible as we are.”

Assistant Chief Racheal Cain, who drafted the policy, said the department revisits the policy each time there’s a new civil-service list to keep it up to date with ​“social expectations and new laws.”

The Policy, Annotated

The New Haven Police Department does not condone any prior unlawful drug use by applicants, but it realizes that some otherwise qualified applicants may have used them at some point in their past. Each applicants drug use will be viewed on a case-by-case basis.

While Dawson said the initial policy isn’t as fleshed out as it could be, it does give a ​“guideline to assess the situation.” And commissioners still do have discretion to make exceptions, as they take up-or-down votes on whether to keep applicants who dabbled in drugs in the past. 

“Some of them were young people in college experimenting,” Dawson said. ​“Maybe it was something they did while they were young and didn’t think about the implications for their future jobs.”

Miguel Pittman, a member of a community policing task force who also leads a study group for police applicants, said that the board should set clearer guidelines on when it’s going to forgive past drug use, rather than having the rules be applied inconsistently based on what’s said behind closed doors.

“The board can use its discretion on any of the items, but that does not stop the background officer from disqualifying you, forcing you to go before the board,” Pittman said. ​“The only way you could get past that is for the commissioners to override the background officer. That only happens if you go into executive session; if you go into open session, they’re not going to override them.”

Narcotics: Hard Drugs & Their Treatment

The following guidelines detail illegal drug use that is grounds for disqualification:

1. The applicant will be disqualified if she/he has used any illegal narcotic, such as: Heroin, Methamphetamine, Morphine, Methadone and Cocaine.

2. The applicant will be disqualified if she/he has ever sold, manufactured or distributed any narcotic listed in DEA schedules I, II, III, IV or V.

From the top, New Haven’s policy equates a drug used to treat opioid addiction with hard street drugs.

The policy starts out by referencing the guiding federal legislation on illegal drugs, the Controlled Substances Act of 1970. That law lists five categories of drugs: narcotics for pain relief; depressants for sedation and sleep; stimulants for energy and alertness; hallucinogens for mind-altered states; and anabolic steroids for muscle-building.

But New Haven’s policy inaccurately clumps everything together under one heading as a ​“narcotic,” misclassifying methamphetamine, which is an upper.

The policy never references any other guidelines for stimulants and depressants specifically.

Prescription drug abuse isn’t covered by the guideline, Cain said, but she said background investigators would pick up on that later on.

Given how narrow the policy is, it’s particularly odd that the policy calls out methadone, said Benjamin Howell, a postdoctoral fellow at Yale who focuses on harm-reduction strategies for opioid use disorder.

“It is weird to see [methadone] on that list,” Howell said. According to the federal government’s annual survey of drug use, ​“it looks like misuse of methadone is exceedingly uncommon.”

SAMHSA’s National Survey on Drug Use and Health estimated that 346,000 Americans misused methadone in 2016. That’s dwarfed by an estimated 11,517,000 Americans who misused other prescription narcotics, most commonly hydrocodone products like Vicodin and Lortab or oxycodone products like OxyContin and Percocet.

Currently, methadone is the most effective treatment for when misuse of those painkillers becomes addicting, yet the drug is heavily stigmatized.

“It is not ​‘replacing one addiction for another.’ It is an appropriate and well accepted treatment for opioid use disorder,” Howell said. ​“it does cause physical dependence, but physical dependence is not the same as a addiction, which is a common misconception.”

Cain said that methadone was included to effectively double down on prohibiting heroin use.

Ecstasy & Coke: Same Party, Different Result?

3. The applicant will be disqualified if she/he has ever used any hallucinogenic substance, such as LSD, PCP or Mushrooms. This excludes the use of Ecstasy provides such use has not been within seven (7) years of application deadline.

Mayor Harp’s appointed community policing task force, in recommendations to the department, said that ecstasy should be included on the prohibited drug list. The department did that, but it also gave the party drug a timeline for acceptable use. Aside from marijuana, ecstasy is the only other illegal substance that can be automatically forgiven without being reviewed by the police commission.

That struck Pittman as unusual, given the racial demographics of who’s taking ecstasy. He said there should be a clearer amnesty date for other common drugs like cocaine, too, rather than just having one exception for a drug that’s common among white ravers.

“I really don’t understand why ecstasy doesn’t fall under harsh drugs like heroin,” Pittman said. ​“Who really uses ecstasy? It’s definitely not people with the African-American community. It’s out in the suburbs. Why would they be lenient on that? The person that came up with that ecstasy rule definitely doesn’t look like me. I don’t do drugs, period, but it’s not done in the community where I live.”

A 2007 survey of 4,850 undergrads at a Midwestern college found that African-American students had the lowest incidence of ecstasy use within the previous year. White students, who were the common users, were 2.7 times more likely to have partied on ecstasy than African-American students.

Marijuana: Half-Way Acknowledgement

4. The applicant will be disqualified if she/he has ever illegally sold, produced, cultivated or transported any controlled substance. This excludes legally transporting, producing and cultivating Marijuana for personal use during the time that an applicant resides in a state where recreational Marijuana is legal and Medical Marijuana prescribed by a licenses physician. 

5. The applicant will be disqualified if she/he has illegally used any controlled substance within twelve (12) months of the application deadline, or is currently prescribed Medical Marijuana by licensed physician. This does not exclude the recreational use of Marijuana in a state where recreational Marijuana is legal within twelve (12) months of the application deadline. 

In the most significant update, the policy now recognizes that recreational marijuana is now legal in 10 states, with many more considering a shift, including Connecticut.

“I’d prefer that they not use any drugs, but in today’s society, people experiment and still want to become police officers,” Dawson said. ​“We’re trying to be a bit flexible. We no not want to limit ourselves to some good candidates.”

Still, it’s not a free-for-all, Cain added. ​“Marijuana is not legal here in Connecticut,” she said. ​“If you want to be a police officer, you must adhere to the laws that are in place within the jurisdiction that you will be serving.”

The policy continues to be behind the times, however, on medical marijuana — possibly in violation of state law, even it conflicts with federal mandates.

The draft version makes an exception for any use of ​“Medical Marijuana prescribed by a licensed doctor.” But the final version says that too is prohibited.

Connecticut’s medical marijuana law, the Palliative Use of Marijuana Act, states that employers cannot discriminate against ​“qualifying patients” who’ve been prescribed marijuana for ​“debilitating medical conditions,” including post-traumatic stress disorder.

The law states that employers can prohibit getting high ​“during work hours,” but they cannot ​“refuse to hire a person” or ​“discharge, penalize or threaten an employee” solely based on their medical needs.

The one exception is for employers who are required to reject medical marijuana users as ​“required by federal law or required to obtain federal funding.” That might be the case for law enforcement agencies.

In 2011, the Bureau of Alcohol, Tobacco, Firearms and Explosives said that federal law prohibits any ​“unlawful user” of a controlled substance from carrying a firearm and ammunition. “[T]here are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law,” the letter reads.

However, the law is still being tested. Last fall, a federal judge in New Haven said that federal law doesn’t preempt the Palliative Use of Marijuana Act.

Judge Jeffrey A. Meyer said that a nursing home had been wrong to rescind its employment offer to a women who takes synthetic cannabis pills at night for PTSD. He said that state law still prohibits discrimination against qualified patients, even if the reason why they’re being discriminated is based in federal law.

Judge Meyer also rejected the nursing home’s argument that it was required to bar the woman because it receives federal funding. ​“This argument borders on the absurd,” he wrote in the ruling. ​“Because the act of merely hiring a medical marijuana user does not itself constitute a violation of the [Controlled Substances Act] or any other federal, state, or local law, defendant is not exempt.”

Steroids: In Or Out?

6. The applicant will be disqualified if she/he illegally used anabolic steroids.

The police department’s draft policy originally allowed the illegal use of anabolic steroids if it was limited to one cycle of six to twelve weeks. But commissioners removed that exception from the final policy.

The idea that it might not have been disqualifying worries Barbara Fair, an activist against police brutality who’s speculated about why some cops are so aggressive in their interactions.

“For them to at least want to put it in there, that makes me think they knew that officers were using but they don’t want them to lose their jobs,” she said. ​“That’s very interesting that it was acceptable to them, despite the warnings about steroid abuse.”

Cain said that the department conducts randomized drug testing once a month, though she wouldn’t disclose what drugs the screenings cover.

Booze: No Biggie

7. The applicant will be disqualified if his/her driver’s license has been suspended for DUI, and the case has been disposed of less than one year prior to the application deadline. 

8. The applicant will be disqualified if his/her driver’s license has been suspended for DUI on more than one occasion.

The department’s policy sets the same one-year amnesty for both drunk drivers and pot smokers.

Dawson said that policy needs to be looked at again.

“I don’t know the specifics of why that was so similar,” he said. ​“That really could be very dangerous if a guy was involved in a DUI. We’ll probably revisit that one.”

FOI Violation

In violation of state law, the police commission and top cops kept the policy secret for more than a year.

Last month, upon reviewing an appeal submitted by the Independent, the Connecticut Freedom of Information Commission (FOIC) ruled that both the police department and police commission had broken the law at nearly every step of the policy’s development.

In a unanimous vote at their Jan. 23 meeting in Hartford, the commissioners approved a decision that said the police shouldn’t have kept the draft secret, the commission should have discussed it in public, and the police should have released a copy in response to a public-records request.

(Click here to read the decision.)

The FOIC didn’t buy the advice city attorney Michael Wolak gave the police commission. It wasn’t the first time that Wolak, the senior assistant corporation counsel, has advanced novel legal interpretations in the quest to shield the police department from accountability; when he sought to get a police-misconduct lawsuit thrown out of courts because the press had covered the case, a federal judge reprimanded for not understanding the First Amendment.

To remedy these latest violations, the FOIC ordered the department to turn over both the draft and final versions of the drug policy.

Initially, on March 1, 2018, when the police commission first considered the drug policy, it kicked an Independent reporter out of the room. Wolak, the board’s lawyer, said they could not discuss a draft in public.

The FOIC said it’s true the document was in draft form, but that didn’t mean that it could be taken up behind closed doors. The Freedom of Information Act states that drafts can be withheld only if there’s a special reason.

The police didn’t establish that, the FOIC said. ​“The respondents failed to prove that they have determined the public interest in withholding the draft employment drug policy clearly outweighs the public interest in disclosure.”

Because the draft shouldn’t have been withheld at all, the police commission also shouldn’t have discussed it in private, the FOIC added. The police commission ​“conven[ed] in executive session for an impermissible purpose,” the FOIC ruled.

Even after it was approved, the police department continued to withhold the policy, saying that it was exempt as ​“testing material.”

The FOIC found that just because the policy might relate to a questions that could be asked about candidate’s past does not make it a test, especially when it’s obvious that candidates will be asked about their past drug use already.

Here’s what the FOIC wrote:

“The Commission is not persuaded that asking an applicant about his or her drug use is an ​‘examination for employment,’ within the meaning of [the Freedom of Information Act].

“The Commission notes that the respondents’ argument is that knowing the acceptable drug use limits for applicants to the police department may cause those applicants to lie, not that applicants will not already know an acceptable answer.

“Unlike a situation where the applicant may be unaware of the questions that will be asked, such as in a polygraph examination, and where the applicant’s reaction to the questions is measures and observed, there can be little doubt that applicants are aware that they will be asked about previous drug use.

“The department may also have policies regarding the age of applicants, their height and weight, their arrest or conviction history, their residency, or their race, all of which the applicant may expect questions about.

“Applicants may expect these questions, and lie in their answers, but that does not make the questions part of an examination for employment.”

Despite worrying that making the document public would encourage dishonesty, Assistant Chief Cain this week said she still thinks there are ​“pros and cons” to having it out there. She said she hopes that it clarifies what wannabe cops need to do before they send in their application.

“Obviously we want people to apply. But it’s a long process that we don’t want people to have to go through and pay fees if they’re not qualified,” Cain said. ​“I’m hoping that by making it public, those individuals who may not qualify will know what they have to to meet the standards that the New Haven Police Department has set.”