Civil service – Lie detector – Police officer – ‘Ongoing criminal investigation’

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Where (1) the plaintiff, a Plymouth police officer, was ordered by the town's police chief to take a lie detector examination as part of an investigation into allegations of child abuse, (2) the plaintiff complied but only after he was granted transactional immunity and (3) he then brought suit against the town claiming that his rights under G.L.c. 149, §19B(2), had been violated because he was ordered to take a lie detector test when there was no "ongoing criminal investigation," the town was properly awarded summary judgment on the ground that the criminal-investigation-exception applied despite the grant of immunity.

"This case requires us to decide … whether a law enforcement agency may order a police officer to submit to a lie detector test regarding alleged criminal conduct when the possibility of prosecution for that conduct has been foreclosed (in this case by the grant of transactional immunity). We conclude, as did the Appeals Court, that the ‘exception applies where the conduct complained of … would constitute a crime even though criminal prosecution was not possible at the time of the administration of the polygraph.' …"

Furtado v. Town of Plymouth, et al. (Lawyers Weekly No. 10-116-08) (14 pages) (Cordy, J.) (SJC) Case heard by McLaughlin, J., on motions for summary judgment. Robert M. Mendillo, of Sally & Fitch, for the plaintiff; Leonard H. Kesten, of Brody, Hardoon, Perkins & Kesten, for the defendants; Bryan C. Decker, John M. Becker and Patrick N. Bryant, all of Sandulli Grace, for Massachusetts Coalition of Police, amicus curiae, submitted a brief; John M. Collins, for Massachusetts Chiefs of Police Association, amicus curiae, submitted a brief (Docket No. SJC-10049) (May 28, 2008).