Heisse v. State of Vt., Civ. A. No. 79-312.
| Decision Date | 19 February 1981 |
| Docket Number | Civ. A. No. 79-312. |
| Citation | 519 F. Supp. 36 |
| Parties | John W. HEISSE, Jr., M.D. v. STATE OF VERMONT, Warren Cone, Commissioner of Vermont Department of Public Safety, and M. Jerome Diamond, Attorney General of the State of Vermont. |
| Court | U.S. District Court — District of Vermont |
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Robert B. Hemley, Gravel, Shea & Wright, Ltd., Burlington, Vt., for plaintiff.
Michael Gadue, Asst. Atty. Gen., State of Vermont, Montpelier, Vt., for defendants.
This is a civil rights action brought under 42 U.S.C. §§ 1981, 1983. Jurisdiction is based on 28 U.S.C. §§ 1343, 2201. The plaintiff is John W. Heisse, Jr., M.D., a board certified otolaryngologist duly licensed to practice medicine in the states of Vermont, Maryland and New York. He is also a practitioner in the field of truth and deception detection, particularly in the use of the Psychological Stress Evaluator (hereinafter the PSE). The PSE measures certain physiological phenomena reflected in the human voice. Defendant Warren Cone at the time the action was instituted was the Commissioner of Public Safety for the State of Vermont. The office is presently held by Paul R. Philbrook. Pursuant to 26 V.S.A. §§ 2901 et seq., the Commissioner is charged with administering the professional activities of Vermont polygraph operators, including the issuance, suspension and revocation of licenses to administer polygraph or other truth or deception detection examinations. Defendant M. Jerome Diamond is the Attorney General of the State of Vermont. Both defendants are sued only in their official capacities.
Dr. Heisse's complaint alleges that as a PSE operator, he and others have been denied a license under Vermont's Polygraph Examiners Act, 26 V.S.A. §§ 2901 et seq., (hereinafter the Act) because the statute has been restricted to licensing persons using the polygraph machine to detect deception or verify truth. Dr. Heisse claims that the Act violates rights protected by the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution by arbitrarily discriminating against those who use devices other than the polygraph for the purpose of truth and deception detection. The plaintiff also challenges the constitutionality of the Act on other grounds: he asserts that the Act's definition of "polygraph examiner" is impermissibly vague and overbroad; that the Act is special legislation designed to maintain a monopoly in favor of polygraph operators; that the Act delegates legislative power to the Commissioner of Public Safety without providing sufficient standards to govern its exercise. The complaint further charges that defendants' refusal to issue licenses to Dr. Heisse constitutes the taking of private property without due process as required by the Fourteenth Amendment. And finally, the plaintiff claims loss of income resulting from defendants' failure to issue him a license.
In his prayer for relief the complainant requests the court to declare the Act unconstitutional, to enjoin its enforcement, and to establish plaintiff's right to practice truth and deception detection without interference from defendants. In addition, he seeks damages in the amount of $250,000 with interest, costs and attorney's fees.
The defendants responded to the complaint by moving to dismiss the action on several grounds. Defendants contend that the court lacks subject matter jurisdiction over the cause since the complaint does not present a and the plaintiff is without standing to bring the suit. It is also defendants' contention that the court lacks jurisdiction over the action because the suit is in fact a petition for a legislative amendment. Defendants raise the Eleventh Amendment as a bar to a claim for damages against state officials. They additionally argue that the good faith qualified immunity afforded state official prohibits this action. Defendants' final assertion is that the doctrine of abstention precludes federal court review of the Act.
During the course of the hearings the court ordered the trial of the action on the merits be advanced and heard with the motion for preliminary injunctive relief as provided in Fed.R.Civ.P. 65(a)(2).
Four elements are involved in the examination of a subject to ascertain truth or deception: the person being examined who makes predictable responses to stress; a measuring device which records his responses; a structured examination for control; and an examiner who interviews the subject and evaluates the causes of stress. In certain circumstances, discussed herein, the person who conducts the interview and the individual who performs the analysis of the results may not be the same person. Some or all of these characteristics commonly apply to examining situations involving the use of the polygraph and the PSE.
Both the polygraph and the PSE operate on the principle that stress causes physiological changes in the body which can be measured to indicate whether the subject of the examination is telling the truth. During an examination in which a polygraph is used, sensors are attached to the subject so that the polygraph can mechanically record his physiological responses to a series of questions. The polygraph employs a blood pressure cuff attached to the subject's forearm or wrist to measure cardiac activity, tubes circumscribing his chest or abdomen to measure respiratory changes, and electrodes attached to his fingers to measure skin conductivity. During the examination period the polygraph examiner calls upon the subject to respond to ten or fifteen questions, leaving time for the body to normalize between each response. Several of the questions are control questions; the remaining ones constitute the relevant interrogatories. The questions are of the type which can be answered "yes" or "no." Typically, a polygraph examination session lasts no more than four or five minutes because longer periods cause discomfort for the subject.
One of the principal advantages of the use of the polygraph is that an individual cannot be subjected to a truth or deception detection examination without his knowledge. A disadvantage is that in some instances a subject's obesity or other medical condition may preclude its use. In addition, the fact that sensors are attached to the subject may induce stress and thus render the test results inconclusive.
The PSE measures change in the frequency modulation of the human voice. It determines pulse rate, blood pressure level, respiratory rate and micro-muscle tremor. Specifically it measures: a single respiratory utterance, the rate of glottic closure, the duration of an utterance, the micro-muscle tremor, the presence or absence of pulse as related to blood pressure, changes in pitch, general nervous tension, and the wave shape of voice frequency.
An examination involving the use of the PSE proceeds with the following steps. An interview with the subject is recorded on a tape recorder. The tape recording of the examination is electronically processed through the PSE which produces a graphic read out of the degree of stress or non-stress present in the subject's voice as he responds to questions. The charts are analyzed to determine the causes for the stress. The chart analysis and the initial interview may be performed by different persons.
The PSE offers several advantages. One is that since the subject is not wired to a machine, the examination conditions do not in themselves produce stress. In addition, the examination period may last longer than just a few minutes because the PSE does not use monitoring devices which cause discomfort to the subject. The subject may give narrative responses, rather than just monosyllabic replies. The disadvantages are twofold. An individual may be subjected to PSE analysis without his knowledge. In addition, the analyst may be a different person from the interviewer and consequently may not have observed the subject during the interview.
Numerous studies have analyzed the reliability of the PSE as a device for detecting truth and deception. Although several studies have concluded that the PSE is a reliable, workable instrument, there is disagreement in the scientific community about the validity of PSE testing.
In 1975 the Vermont General Assembly enacted the Polygraph Examiners Act, 26 V.S.A. §§ 2901-2910. Section 2903 of the Act provides that "A person may not administer polygraph or other examination utilizing instrumentation for the purpose of detecting deception or verifying the truth of statements ... without being licensed as a polygraph examiner" under the provisions of the Act.
Section 2902 establishes the minimum instrumentation required under the Act. It provides that "Any instrument used ... for the purpose of detecting deception ... shall record visually, permanently and simultaneously:
(1) A subject's cardiovascular pattern, and
(2) A subject's respiratory pattern."
The Act prohibits the "use of any instrument or device to detect deception which does not meet these minimum instrumentation requirements." The record of additional physiological changes is not proscribed by the statute.
Section 2904, which sets out the requirements for obtaining a license, provides that a prospective polygraph examiner licensee must complete not less than six months of internship training or such other training as the commissioner may prescribe. "Internship" is defined in Section 2901 as "the study of polygraph examination and of the administration of polygraph examination by a trainee under the personal supervision and control of a polygraph examiner in accordance with a course of study approved by the commissioner." To date the Department of Public Safety does not have an established internship program. Nor...
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