Police can be forced to take lie detector tests, SJC rules

Unanimous on internal probes

Saying public confidence in law enforcement must be protected, the state's high court ruled yesterday that police officers can be forced to take lie detector tests during internal investigations into possible criminal activity.

In a unanimous decision, the Supreme Judicial Court ruled against Officer Kevin J. Furtado, who was required to take a lie detector test by the Plymouth Police Department. The demand came after he was accused in 1999 of sexually abusing two children, an allegation the parents of the boys later said were unfounded, according to court records. Plymouth County prosecutors decided against bringing criminal charges against Furtado at that time.

Furtado was then subjected to an internal investigation by Police Chief Robert Pomeroy, who insisted on the lie detector test before Furtado could return to work, the SJC said. Furtado was granted immunity from prosecution and took the test, but then insisted his rights had been violated because employers are barred from using results of lie detector tests as the basis for a job, according to the SJC and court records.

That same law, however, allows lie detector tests to be conducted by law enforcement as part of its investigations, and the SJC said that exception must apply to officers who are targets of internal inquiries, even when no criminal charges will ever result.

"We have little hesitation in concluding that, when the functions of a Police Department are disrupted by allegations of criminal conduct by police officers, the Police Department's decision to subject officers reasonably suspected of criminal activities to lie detector tests furthers law enforcement objectives," Justice Robert Cordy wrote for the court by drawing on a 1984 ruling on the same issue.

Lawyers for Furtado and a police union warned that the SJC is slowly opening the door to widespread use of lie detectors for both public and private employees, but police chiefs and the lawyer for Plymouth said the ruling should help bolster public confidence in the integrity of police officers across the state.

"The lie detector is an important tool when you are investigating potential crimes by law enforcement officials," said Leonard H. Kesten, a lawyer who represented Plymouth and Pomeroy.

"You can't use it to prosecute them criminally . . . but this Police Department wanted to take every possible precaution before putting this police officer back to work."

A. Wayne Sampson, executive director of the Massachusetts Association of Police Chiefs, said the ruling "makes sense."

"Obviously, municipalities have a public policy obligation to ensure that all of our employees, especially police, are not involved in crime," he said.

But Plymouth lawyer Joseph Gallitano, who has represented Furtado for years, said that by linking employment to use of lie detectors, the court is eroding the few protections workers have against coercive practices by employers.

"It will bleed over to the private sector; it will certainly bleed over into other public sector" jobs, he said.

Furtado, who returned to work in 2000 and has lost the lawsuit demanding hundreds of thousands in damages, could not be reached for comment yesterday.

"It was just an unfortunate event that occurred," said Robert M. Mendillo, one of Furtado's lawyers. "No disciplinary action was ever taken against him."

Patrick Bryant, a lawyer who represented the Massachusetts Coalition of Police union, said the SJC has banned the use of lie detectors in the courts and then singles out police officers to be targeted.

"So why would you subject police officers and only police officers, to a technology that is essentially bogus?" he asked.

Kesten, the town's lawyer, said the court set out different rules for police because they have unique jobs.

"You can't arrest people," he said. "We are not allowed to use deadly force on people; they are."