Jersey City police chief wins court battle over steroid testing
Published: Friday, December 23, 2011, 6:30 AM

In a decision that could have implications for law enforcement agencies nationwide, a federal appeals court has ruled the Jersey City police chief did not violate the rights of several officers when he ordered them to undergo testing for anabolic steroids, stripped them of their weapons and assigned them to desk duty.

The opinion by the 3rd Circuit Court of Appeals in Philadelphia amounts to a victory for Chief Tom Comey, who contended throughout the lengthy legal fight he had an obligation to ensure the officers did not pose a risk to the public given the link between steroids and increased aggression.

More significantly, the ruling puts the appeals court’s imprimatur on an issue that has not been widely addressed at the federal level. While the courts have repeatedly upheld law enforcement policies that test for illegal drugs, they have not tackled the use of testosterone and other steroids obtained with a prescription, leaving chiefs in a legal gray area.

In the Jersey City case, the officers obtained prescriptions from a doctor who, authorities say, faked diagnoses in many cases to accommodate clients’ desires to get bigger and stronger. Some of the drugs were then sent by mail from a Brooklyn pharmacy investigators determined was little more than an illegal steroid mill.

University of Texas professor John Hoberman — who tracks steroid use in law enforcement and who has written widely about the rise of hormone replacement therapy, along with its abuses — called the ruling a "groundbreaking" opinion that should make it easier for police chiefs to take action against officers who bulk up under the guise of hormone therapy.

"In the past, police officials have tended to back off of strict enforcement, because they simply did not know how to handle medical claims by officers," Hoberman said. "This judge has refused to allow the medical claim to dictate the outcome of the case, and that is a breakthrough for the anti-steroid rules that many departments have not enforced in a consistent way."

The appellate opinion, released Tuesday, affirms a lower court decision dismissing the claims brought by officers Nicholas Kramer, Brian McGovern and Patrick Fay. They were among more than 40 Jersey City officers who obtained anabolic steroids or human growth hormone from Lowen’s Pharmacy in Brooklyn, court records show.

The drugs had been prescribed by Jersey City physician Joseph Colao, the subject of a series of stories in The Star-Ledger last year.

Comey, who was tipped to the steroid use by a New York City internal affairs captain, ordered his officers to undergo tests and put them on modified duty pending the results. Officers who had elevated levels of testosterone — a hallmark of steroid use — remained on desk duty until those levels returned to a normal range.

Seven of the officers initially filed suit, claiming their civil rights had been violated. When the district court ruled against them, Kramer, McGovern and Fay appealed.

In Tuesday’s opinion, Appeals Court Judge Julio Fuentes cited the link between heavy steroid use and aggression and argued armed police officers exercise an "awesome and dangerous power." Moreover, he said, because the profession is both dangerous and "highly stressful," officers must be mentally fit.

"Chief Comey had a reasonable suspicion that the officers’ perception and judgment might be impaired by excessive steroid levels," Fuentes wrote.

Comey could not be reached yesterday. Deputy Chief Peter Nalbach, who was involved in the decision to place the officers on modified duty, said he was gratified the court agreed the "public interest is greater than the individual."

"We’re committed to ensuring our personnel are capable of providing public safety services to the citizens of Jersey City," Nalbach said. "We have to make sure nothing takes away from that ability."

The officers’ lawyer, D. Gayle Loftis, said her clients suffer from a legitimate medical condition, known as hypogonadism, and that testosterone can ease symptoms that include fatigue and impotence. She said the men have been victims of "hysteria" about steroids, which are appropriate for some conditions.

"This was not a case where someone was using meth or cocaine," Loftis said. "You’re talking about a legally prescribed drug that doctors in New Jersey are authorized to prescribe."

The lawyer said she is considering filing a motion to ask the appellate panel to reconsider. The deadline to do so is early next month. Loftis said she also is considering filing a lawsuit in state court instead, claiming violations of the Law Against Disabilities and the state Civil Rights Act.

"The fat lady ain’t sang all of her songs just yet," Loftis said.