By Jack Stern
The decision to terminate former Detective and Police Officer Frankie Palaguachi for testing positive for marijuana was upheld by Vanessa Facio-Lince, the NYPD’s Assistant Deputy Commissioner of Trials. Palaguachi’s original dismissal was made on the basis that he consumed a “controlled substance.” He challenged the ruling on the premise that the administered hair sample was flawed and scientifically inconclusive. A claim that his attorney, Eric Sanders, argued was substantiated by flawed methodology in collecting the samples, an unvalidated system, and previous similar cases.
“The first question you have to ask is: Is the test a valid measuring tool?” Sanders pointed out. “Not according to Eric’s law – according to uniform guidelines and according to the frye standard in New York State – that’s the first threshold and they don’t even want to talk about that.”
Palaguachi stated his positive test could possibly be traced back to his wife’s usage of THC for medical reasons, or being openly exposed to THC smoke while working in the subway. However, Dr. Joseph Ciuffo, the Medical Review Officer involved in the case, made the recommendation that the defendant’s alternative explanation for his positive test lacked merit. Sergeant Danny Tse, tasked with collecting the hair samples by the Medical Division, explained he abided by departmental procedure, scraping hair off Palaguchi’s leg and arm. Of note: Both are employed by the police department, with Ciuffo having previously served as the Deputy Chief Surgeon for 22 years.
In his counterclaim, Sanders cited the Massachusetts Civil Service Commission’s decision to reject specific Psychemedics results, including an instance where members of the Boston Police Department were reinstated following a false positive test for cocaine. But the premise and validity of Sanders’ argument was deemed illegitimate on the basis that the previous result was related to testing for cocaine, not marijuana. However, Sanders remains steady on his belief and also pointed out applicability and similarities between situations.
“They’ll say ‘cocaine is different than marijuana’ and they’re right, cocaine is more stable and you can measure cocaine,” Sanders said. “Marijuana is more complex to measure. Their logic is based on nothing, because I guarantee you they can’t say it’s scientific. Their own witness said no one’s ever validated it.”
Per the department’s zero tolerance policy, Palaguachi’s firing comes on the basis that he provided a safety risk to himself, his colleagues, and the public. His reasons for rationale for the positive test were deemed invalid by all three witnesses – Ciuffo, Tse, and Dr. Ryan Paulson, Psychmedics Laboratory Director. Paulson testified that Palaguchi had likely ingested marijuana more than once and tested above a level that would’ve come by virtue of inhaling secondhand smoke. Palaguachi and Sanders, plan on challenging the merits of their findings in court with a definitive end goal in mind.
“What I want them to do is accept their responsibility as an employer,” Sanders said. “The problem is they kind of make up things as they go along.”
After exchanging correspondence with the office of the NYPD’s Deputy Commissioner of Public Information via phone, a formal request for comment was returned via email with an unidentified spokesperson saying “the disciplinary process remains ongoing.”