Yesterday, the Suffolk Superior Court issued an order preliminarily enjoining the newly created Massachusetts Peace Officer Standards and Training (“POST”) Commission from requiring police officers to answer certain written questions in connection with the new officer recertification process required by M.G.L. c. 6E. Specifically, in Hovsepian, et al. v. Massachusetts Peace Officer Standards and Training Commission consolidated with New England Police Benevolent Association, et al. v. Massachusetts Peace Officer Standards and Training Commission, the Court enjoined the POST Commission from asking police officers Questions No. 6 and No. 7, as currently written, in the POST Questionnaire as part of the recertification process.

Recertification is required every three (3) years on a rolling basis under M.G.L. c. 6E. All officers must be certified (and subsequently recertified) to be employed as a police officer in the Commonwealth. As part of the recertification process, officers must meet a minimum of nine criteria laid out in the law, two of which are the “successful completion of an oral interview administered by the Commission” and “being of good moral character and fit for employment in law enforcement, as determined by the Commission.” The POST Commission has delegated the tasks of performing the oral interview and determining whether an officer is of good moral character and fit for employment in law enforcement to local municipalities. As part of the oral interview component of the recertification process, the Commission created an 8-part questionnaire that officers are required to answer in writing and under oath. 

In April 2022, three presidents of local police unions in Boston and Waltham jointly filed suit in Suffolk Superior Court challenging the constitutionality and legality of four of the questions contained in the POST Commission’s recertification questionnaire. In particular, the plaintiffs in that case argued that Question Nos. 1, 6, 7, and 8 were unconstitutional. Soon thereafter, an officer in the Worcester Police Department and the New England Police Benevolent Association (NEPBA) separately filed suit in Worcester Superior Court that more broadly challenged the recertification process and that sought a preliminary injunction prohibiting the use of the questionnaire on the grounds that (1) its use exceeded the Post Commission’s statutory authority; (2) the so-called “good moral character” standard violates due process; and (3) all eight (8) of the questions on the questionnaire violate officers’ right to privacy. The Suffolk Superior Court then consolidated the two lawsuits.

After hearing argument, the Court granted plaintiffs’ motion for preliminary injunction in part, as it related to Question Nos. 6 and 7 on the recertification questionnaire. Question No. 6 on the POST Questionnaire states as follows:

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.

In analyzing Question No. 6, the Superior Court found that it is both overbroad in that it implicates a “substantial amount of protected speech” and an affirmative answer by a police officer could lead to significant negative consequences for that officer, and that it is vague in that, as written, it is impossible to answer “as it asks officers to divine whether unknown third parties might ‘perceive as biased’ any social media communication by the officer.” In finding that Question No. 6 is vague, the Superior Court further noted that “the question relies on such a subjective and unascertainable standard that persons of common intelligence simply cannot know the limits of what requires an affirmative response.” The Court also noted that Question No. 6 further obscures the type of communication that would merit an affirmative response by asking, in part, about comments about “socioeconomic or professional level” which are not protected categories. 

Although it found that Question No. 6 is both vague and overbroad, the Court made clear that the POST Commission could still ask questions about officers’ social media communications that could help detect biases as the Commission has a compelling interest in rooting out bias in policing. The Commission, however, needs to ask a “better-defined, more tailored question” than Question No. 6, which, in its current form, restricts too wide a range of speech and is unduly vague.

Likewise, the Court found that the plaintiffs have a likelihood of succeeding on the merits of their claim that Question No. 7 is unconstitutional because, as drafted, the question is not reasonably related to the goal of rooting out bias in policing. Question No. 7 states as follows:

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.

In analyzing Question No. 7, the Court noted that “there is not even a rational relation between the Commission’s goal of ferreting out bias in policing and the information sought in Question No. 7, because the question requires disclosure of group membership that says nothing about whether an officer harbors bias.” The Court further noted that Question No. 7 does not seek to limit disclosure to the type of membership that might actually indicate bias such as in groups whose purpose, policy, or principles are based on discriminatory animus, but instead seeks information that is largely irrelevant and not substantially related to the Commission’s goal of identifying officers who harbor bias.

Although the Court found that the plaintiffs are likely to succeed on the merits of their claims that Question Nos. 6 and 7 are unconstitutional, it did not reach the same conclusion with respect to Question Nos. 1 and 8. 

Likewise, the Court also found that the plaintiffs in the Worcester case were unlikely to prevail on the merits of their claims that the use of the Questionnaire with the oral interview requirement exceeds the Commission’s statutory authority; the use of a “good moral character” standard violates officers’ due process; and that all eight of the questions in the Questionnaire violate officers’ privacy rights. In doing so, the Court found that under the law, the Commission has the authority to establish procedures to carry out the statute’s objectives and that the mandate that the Commission administer an oral interview is sufficiently flexible to permit the Commission to require officers to answer written questions as part of the interview. 

The Court also noted that POST issued regulations after the Worcester plaintiffs filed their suit that contain a number of criteria to help department heads make character and fitness findings and that the “good moral character” standard is used in a number of other professional licensing schemes such that the plaintiffs would not likely prevail in showing that the standard violates officers’ due process rights. Finally, the Court noted that officers have a reduced expectation of privacy and, therefore, the fact that officers’ answers to the Questionnaire might be subject to public disclosure would not amount to an unwarranted intrusion on their personal privacy.

In light of the Court’s Order, the Commission is enjoined from asking officers Question Nos. 6 and 7, as presently drafted, as part of the recertification process. Officers who have not yet responded to the Questionnaire because they have been granted extensions to do so do not have to answer Question Nos. 6 and 7. For those officers who have already returned the completed Questionnaire and answered Question Nos. 6 and 7 in their present form, the answers may not be used, directly or indirectly, as a basis for denial of recertification.

Although it may not use any of the answers to Question Nos. 6 and 7 in their present forms, the Commission may require all officers to answer revised questions that meet constitutional requirements.

The Court’s injunction is not a final decision in the case, and any final decision may be subject to appeal. We will continue to monitor this case and provide further updates as warranted.

Please contact any member of our Public and Municipal Law Group if you have any questions about this legal update.